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JAN  0  7  197F 


THE     LAW       _ 

b.  \^:s 

.  c^e^  OF 

FREEDOM   AND   BONDAGE 


IN    THE 


UNITED  STATES 


JOIIK    CODMAN    HURD, 


COUNSELLOR   AT   LAW. 


Moribus  antiquis  res  stat  Eomana  virisque. 

ExNics,  apud  Cic,  cie  Rep. 


IN  TWO  VOLUMES. 
VOL.  I. 


BOSTON: 

LITTLE,   BROWN    &   COMPANY 

NEW  YORK  : 

D.   VAN    NOSTRAND. 

M.DCCC.LVIII. 


ExTEEED  according  to  Act  of  Congress,  in  the  year  1S53,  by 

JOHN  CODMAN  HUED, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States,  for  the  Southern 

District  of  New  York. 


JOHX  F.  TROW, 

Pkinteb,  Sterboti*prr,  asd  Elkctrotvpeb, 

No«.  377  &  379  Breaiiwny,  New  York. 


TO 

MY    FATHER, 

THIS    WORK, 

THE      RESULT      OF      STUDY 

ALWAYS     PROMOTED     BY     HIS     GENEROSITY 

AND    INCITED    BY    HIS    SYMPATHY, 

IS    GRATEFULLY 

INSCRIBED. 


PREFACE. 


On  the  publication  of  a  volume  whose  title  indicates  its 
connection  with  questions  arising  from  the  existentje  of  negro 
slavery  in  the  United  States,  a  recollection  of  the  number  and 
variety  of  the  existing  works  on  that  subject  will  suggest  the  pro- 
priety of  some  prefatory  exposition  of  the  author's  point  of  view. 

Although  the  questions  considered  in  this  work  are  not  fre- 
quently matters  of  controversy  in  courts  of  law,  and  derive  their 
principal  interest  from  their  connection  with  objects  of  more 
political  and  public  importance  than  are  the  litigated  rights  of 
private  persons,  yet  it  is  /designed  and  published  as  a  legal  or 
juristical  treatise,  or  one  which,  if  not  technical,  may  still  with 
strictness  be  called  a  "  law  book."  It  is  intended  to  present 
statements  of  law  only,  without  the  introduction  of  any  consider- 
ations of  the  effect  of  such  law  on  the  moral  or  religious,  the 
social  or  political  interests  of  the  nation  or  of  the  several  StatesJ 

Having  this  character  exclusively,  it  follows  that  the  pro- 
posed work  cannot  be  expected  to  contain  any  thing  essentially 
new  :  simply  because,  if  such,  it  could  not  be  laiv.  The  merit 
of  a  treatise  of  this  kind  must  always  consist  in  presenting  no 
proposition  without  adequate  reference  or  deduction,  showing 
that  the  same  has  already  been  said,  or,  at  least,  if  not  said,  lias 
been  implied  in  former  juridical  expositions. 


VI  PREFACE. 

But  the  Lest  kno^vn  propositions,  whether  of  fact  or  of  doc- 
trine, have  not  always  been  stated  in  their  proper  sequence,  or 
exhibited  as  coherent  or  mutually  dependent  propositions. 
Whatever  novelty  may  be  found  in  the  following  pages  will 
consist  in  the  attempted  arrangement  of  well-known  facts,  or 
received  doctrines  of  law,  connected  with  the  subject,  in  their 
proper  order  ;  though,  in  doing  this,  it  may  be  made  to  appear 
that  some  propositions  which,  in  the  discussion  of  the  subject  of 
slavery  under  the  laws  of  the  United  States,  are  commonly  ad- 
vanced as  contradictory  or  antagonistic,  are,  in  reality,  not  so. 

If  successful  in  being  a  correct  statement  of  the  law  on  the 
subject,  the  proposed  treatise  cannot  be  of  a  partisan  character, 
or  cannot  be  otherwise  than  impartial  in  respect  to  the  objects 
of  political  parties.  For  the  exposition  of  existing  law  is  merely 
the  statement  of  the  fact,  and  is  entirely  distinct  from  any  ap- 
proval or  disapproval  of  that  law,  on  grounds  of  moral  or  politi- 
cal expediency.  This  will  probably  be  admitted  by  all  who 
have  made  the  law  to  any  great  extent  their  study.  But  the 
popular  manner  of  treating  the  subject  of  slavery  may  warrant 
the  belief  that  a  very  large  proportion  of  those  who  participate 
in  such  discussions  would  not  admit  the  proposition,  and  do  not 
ordinarily  discriminate  between  the  legal  or  juristical  view  of 
subjects  of  social  interest  and  other  views  essentially  ethical  or 
political. 

The  failure  to  distinguish  between  the  science  of  law  and 
that  of  ethics  has  been  common  in  every  country,  and  manifested 
in  connection  with  many  subjects  of  social  interest ;  but  never 
nor  in  any  country  more  plainly  than  in  this,  at  the  jiresent 
time,  in  controversy  excited  by  the  subject  herein  considered. 
The  connection  between  private  rights  and  public  law,  which 
everywhere  exists,  is  particularly  visible  in  the  jurisprudence  of 
republican  states,  and  is  in  this  country  not  merely  a  matter  of 


PREFACE.  Til 

theory,  but  a  constant  object  of  judicial  consideration.  "Where 
popuhir  sovereignty  is  recognized  and  is  visibly  operative  in  the 
form  of  government  ;  where  law  is  seen  to  liave  its  ultimate 
source  in  the  collective  judgment  of  the  community,  the  in- 
dividual member  of  society  may  the  more  easily  confound  law 
with  matter  of  conscience,  and  legal  inquiry  with  that  investiga- 
tion by  which  political  or  moral  ends  are  to  be  attained. 

In  the  belief  that  this  tendency  arises  principally  from  a 
want  of  precision  in  the  definitions  of  law  and  in  the  formulas 
which  express  the  basal  propositions  of  jurisprudence,  the  follow- 
ing examination  of  the  laws  of  the  United  States  affecting  per- 
sonal condition  has  been  commenced  by  a  preliminary  exposition 
of  those  principles  of  general  jurisprudence  which  would  be 
necessarily  involved  in  considering  the  incidents  of  free  condition 
and  its  contraries  in  whatever  country  they  might  exist ;  and  it  has 
been  attempted  at  the  same  time  to  discriminate  for  use  in  the 
succeeding  inquiry  such  terms,  already  adopted  by  writers  of 
acknowledged  reputation,  as  are  requisite  to  express  the  neces- 
sary distinctions. 

Some  principles  are  necessarily  assumed  without  proof ;  and 
when  stated,  as  abstract  propositions,  without  being  illustrated 
by  application  to  cases,  only  those  already  familiar  with  the 
questions  to  which  they  apply  can  be  supposed  to  perceive  their 
relevancy.  The  value  of  the  abstract  or  elementary  portions  of 
this  treatise  may  be  tested  by  their  attempted  application  to  the 
practical  cases  presented  in  the  succeeding  portions.  It  must 
be  confessed  that  while  a  great  deal  of  the  literature  of  jurispru- 
dence may  illustrate  the  constant  need  of  such  reference  to  ele- 
mentary principles  and  discrimination  of  language,  it  will  also 
illustrate  the  fact  that  they  do  not  ordinarily  receive  much 
attention.  And  the  dictum  attributed  to  Bartolus,  "dc  vtrhi- 
hus  non  curat  Jurisconsultus,"  if  regarded  as  the  statement  of  a 


vm  PREFACE. 

fact,  is  perhaps  nowhere  better  vindicated  than  where  the  inci- 
dents of  bond  and  free  condition  have  been  the  topics  of  legal 
investigation. 

Since  it  is  principally  as  -connected  with  public  or  constitu- 
tional law  that  the  incidents  of  free  condition  and  its  contraries 
have  been  made  the  •  subject  of  legal  inquiry,  and  now  excite 
most  discussion,  they  have,  in  the  greater  portion  of  the  following 
pages,  been  presented  in  that  connection. 

It  seems  natural  to  suppose  that,  in  the  jurisprudence  of 
every  country,  that  which  in  its  place  in  the  system  is  most  fun- 
damental must  also  be  that  portion  which  is  least  the  subject  of 
legal  doubt,  or  that  which  may  the  most  easily  be  ascertained 
in  the  harmony  of  judicial  determinations.  So  it  will  probably 
be  thought  by  most  persons  that  in  the  exposition  of  any  class 
of  j)rivate  rights  and  obligations  arising  under  American  law 
the  constitutional  law  connected  with  the  subject,  or  the  meaning 
and  effect  of  the  Constitution  of  the  United  States  in  that  con- 
nection, especially  as  determining  the  political  source  to  which 
existing  rights  of  private  persons  are  to  be  referred  and  on 
which  the  continuance  of  their  rights  depends,  must  be  that 
portion  of  the  inquiry  giving  the  least  occasion  for  independent 
investigation  or  original  reference  to  elementary  principles  of 
construction  and  interpretation. 

But  that,  in  some  of  the  most  important  questions  of  consti- 
tutional law,  the  private  inquirer  cannot  so  implicitly  refer  to 
their  determination  by  judicial  opinion,  or  could  not,  at  least,  so 
lately  as  the  year  1837,  might  be  believed  from  the  strong  ex- 
pressions used  by  the  late  Judge  Baldwin  of  the  Supreme  Court 
of  the  United  States,  in  his  General  View  of  the  Origin  and 
Nature  of  the  Constitution  and  Government  of  the  United 
States,  &c.,  &c.,  commonly  cited  as  Baldwin's  Constitutional 
Views,  published  in  that  year.     See  page  2,  where  he  says,  "  It 


PREFACE.  IX 

bad  long  been  to  me  a  subject  of  deep  regret  tbat,  notwitbstand- 
ing  tbe  numerous,  consistent,  most  solemn,  and  (with  some  few 
and  mostly  late  exceptions),  to  my  mind,  most  satisfactory  ad- 
judications of  this  court  [the  Supreme  Court  of  the  United 
States],  in  expounding  the  Constitution,  its  meaning  yet  remains 
as  unsettled,  in  political,  i)rofessional,  and  judicial  opinion,  as  it 
was  immediately  after  its  adoption.  If  one  is  to  judge  of  the 
next,  by  the  results  of  tlie  past  half  century,  tliere  is  but  a  slight 
assurance  that  tliat  instrument  will  be  better  understood  at  the 
expiration,  than  it  is  at  the  beginning  of  the  period." 

And  were  not  the  apprehension  here  expressed  well  founded, 
it  would  generally  be  felt  that  the  exposition  of  the  fundamental 
principles  of  American  constitutional  law  must  be  as  easily  at- 
tainable by  any  private  writer  as  is  that  of  the  ordinary  law  of 
private  rights  and  obligations.  An  industrious  collation  of  ex- 
isting judicial  decisions  should  be  as  sufficient  to  establish  a 
deduction  of  the  true  principle  in  that  department  as  in  any 
other  of  our  law.  Yet,  in  no  portion  of  juristical  literature,  does 
the  reader  so  commonly  expect  that  the  author  undertaking  the 
exposition  should  be  supported  by  the  prestige  of  a  precedent 
reputation  which  may  give  his  views  an  authority  beyond  any 
they  could  have  by  being  simply  impartial  deductions  from  the 
ordinary  elements  of  legal  knowledge  :  as  if  it  were  generally 
understood  that  in  treatises  on  constitutional  law  the  wiiter, 
instead  of  relying,  as  in  other  departments  of  jurisprudence,  on 
the  force  of  judicial  decisions,  should  himself  enter,  more  or  less, 
on  an  independent  construction  and  interpretation  of  the  Consti- 
tution, and  test  the  value  of  the  decisions  by  his  own  several 
deduction  from  the  bare  text  of  the  instrument. 

And,  indeed.  Judge  Baldwin's  further  observations,  in  con- 
tinuation of  the  passage  just  cited,  indicate  that  this  idea  has 
been  countenanced  by  the  practice  of  the  court  itself.     "  It  is  to 


X  PREFACE. 

be  feared."  he  proceeds  to  say,  "  that  unless  some  mode  of  inter- 
pretation different  from  what  has  been  usually  j)ursued  in  arj^u- 
ment  is  adopted,  the  present  uncertainty  must  become  utter  con- 
fusion. In  reviewing  the  course  of  argument  on  both  sides  in 
these  cases,  the  remark  is  fully  justified  that  we  have  been  re- 
ferred, for  the  true  interpretation  of  the  Constitution,  to  books, 
essays,  arguments,  opinions,  speeches,  debates  in  conventions 
and  legislative  bodies,  by  jurists  and  statesmen,  and  by  some 
who  were  neither,  which  would  not  be  offered  or  suffered  to  be 
read  in  any  court,  as  entitled  to  respect,  in  construing  an  ordi- 
nary act  of  legislation,  or  a  contract  between  individuals." 

The  generous  reader  will  not  believe  that,  in  this  allusion  to 
the  miscellaneous  nature  of  former  inquiry  in  this  department, 
the  writer  would  insinuate  an  argument  for  the  favorable  recep- 
tion of  his  own  observations  on  one  of  the  most  important  sub- 
jects of  constitutional  law.  No  one  can  be  more  sensible  that, 
in  proportion  to  the  interest  of  the  inquiry  and  the  deficiency  of 
the  ordinary  means  of  attaining  juridical  certainty  must  be  also 
the  demand  for  special  qualifications  in  the  writer  for  such  inves- 
tigation, and  be  more  aware  of  his  exposure  to  the  charge  of  pre- 
sumption in  their  absence.  The  testimony  of  Judge  Baldwin  is 
here  adduced  not  merely  as  showing  that  the  decisions  of  the 
highest  courts  may  not  in  this  matter  have  been  successful  as 
harmonious  expositions  of  the  fundamental  principles  of  Ameri- 
can public  law,  but  more  particularly  because  in  that  connection 
he  has  maintained  the  authority  of  common  law  as  the  control- 
ling juridical  instrument  for  attaining  a  knowledge  of  the  pur- 
pose and  legal  effect  of  the  Constitution  of  the  United  States  ; 
and  because  that  view  is  in  harmony  with  the  method  which  has 
been  pursued  in  the  following  work.  In  the  place  referred  to. 
Judge  Baldwin  also  said,  ''  1  have  long  since  been  convinced 
that  there  are  better  and  safer  guides  to  professional  and  judicial 


PREFACE.  XI 

inqiiirios  after  truth,  on  constitutional  questions,  tban  those 
which  have  heen  so  often  resorted  to  without  effecting  the  de- 
sired result,  a  clear  and  settled  understanding  of  the  terms  and 
provisions  of  an  instrument  in  writing  which  operates  with  su- 
preme authority  wherever  it  applies.  To  me  it  seems  that  it 
can  be  made  intelligible  in  all  its  parts  by  applying  to  it  those 
established  rules  and  maxims  of  the  common  law,  in  the  con- 
struction of  statutes,  and  those  accepted  definitions  of  words, 
terms  and  language  in  which  they  had  been  used  and  been 
received,  as  well  known  and  understood,  in  their  ordinary  or  legal 
sense,  according  to  the  subject  matter.  In  appealing  to  the 
common  law  as  the  standard  of  exposition  in  all  doubts  as  to  the 
meaning  of  written  instruments,  there  is  safety,  certainty,  and 
authority.  The  institutions  of  the  colonies  were  based  on  it," 
&c.,  &c.  ;  and  on  page  7  of  the  same,  "  I  know  no  other  guide 
which  is  safer,  which  better  conducts  the  mind  to  certainty,  nor 
do  I  feel  at  liberty  to  follow  any  other  than  the  principles  of  the 
common  law  that  are  well  established  and  applicable  to  a  case 
arising  under  the  Constitution,  and  which  turns  upon  its  inter- 
pretation ;  their  adoption  has  been,  in  my  judgment,  most  clearly 
made  by  every  authority  which  can  impose  the  obligation  of 
obedience." 

The  question  indeed  will  have  to  be  answered,  what  is  com- 
mon law  ?  or,  rather,  what  is  that  common  law  which  is  to  be 
made  the  standard  ?  This  can  only  be  a  historical  question — a 
question  of  fact  ;  requiring  a  preliminary  examination  of  the 
history  of  jurisprudence,  or  of  laws  deriving  their  authority  from 
those  possessors  of  sovereign  power  who  established  the  Constitu- 
tion, or  from  their  political  predecessors.  And  this  again  in- 
volves the  recognition  of  those  elementary  principles  which  enter 
of  necessity  into  the  jurisprudence  of  every  country,  and  by 
which  its  origin,  continuance,  and  extent,  may  be  determined  ; 


xil  PREFACE. 

and  which,  in  their  connection  with  the  suhject  of  free  condition 
and  its  contraries,  are  discriminated  in  the  elementary  or  theo- 
retical portion  of  this  treatise. 

This  inclination  or  practice  of  deferring  to  extrajudicial  au- 
thority in  questions  of  constitutional  law  far  more  than  is  cus- 
tomary in  other  departments  of  legal  science,  must  indeed  be 
ascribed  in  part  to  the  foct  that  in  republican  states  such  ques- 
tions are  always  more  or  less  political,  as  well  as  legal  questions  ; 
so  much   so  that,  whether  they  are  one  or  the  other,  whether 
\  they  are  to  be  decided  by  the  judiciary  or  by  some  other  branch 
lof  the  government — itself  a  constitutional  question — can  hardly 
be  decided  by  either  branch  alone.     It  may  be  thought  that  the 
attempt  made  in  the  eleventh  chapter  of  this  treatise  to  answer 
'the  basal  question  of  our  constitutional  law,  From  whom  does  the 
written  Constitution  derive  its  authority  "?  or.  Who  are  the  pos- 
sessors of  sovereign  power  to  whom  its  existence  and  continuance 
is  to  be  ascribed  .^  or,  What  is  the  political  organization — na- 
tional or  federative — of  the  United  States  ?  is  beyond  the  scope 
of  this  treatise,  as  confined  to  subjects  of  legal  inquiry  only. 
Yet  that  the  same  questions  have  been  frequently  objects  of 
judicial  consideration,  is  abundantly  illustrated  by  the  reports, 
and  in  no  class  of  cases,  probably,  more  commonly  than  those  in 
which  the  ri^-hts  of  slaveowners  under  the  Constitution  have  been 
the  subject  of  controversy.     It  is  however,  essentially,  a  political 
question,  and  one  which  no  judicial  tribunal  whose   authority  is 
dependent  upon  its  answer  can,  in  the  nature  of  the  case,  deter- 
mine.    And  that  its  settlement  has  not  been  attained  by  such 
decisions  is  certified  by  Judge  Baldwin  in  the  work  referred  to, 
page  36  ;  where,  after  presenting  that  view  which  had  been  sup- 
ported by  the  decisions,  and  which  was  his  own  opinion,  he  ob- 
served   "  These  considerations,  however,  have  utterly  failed  to 
settle  the  true  meaning  of  the  term,  '  We^  the  people  of  the 


PREFACE.  Xm 

United  States,'  as  the  granting  or  constituent  power  of  the 
federal  government.  So  far  from  there  being  any  general  assent 
to  that  meaning  which,  to  ray  mind,  is  so  apparent  in  the  Con- 
stitution, with  its  necessary  practical  results,  which  its  framers 
and  adopters  must  have  known  and  foreseen  to  be  inevitable,  the 
reverse  maybe  the  common  opinion." 

The  question,  Who  makes  the  law  of  the  land  I  live  iu  ?  is 
one  which  each  private  person,  required  to  yield  obedience  in  the 
name  of  the  law,  is  always  supposed  to  be  able  to  answer  for 
himself,  independently  of  judicial  decision.  It  is  the  question  of 
allegiance.  Who  is  the  actual  possessor  of  sovereign  power  ? 
which  in  most  countries  is  never  asked  if  the  decision  of  a  judicial 
tribunal  would  be  a  sufficient  answer.  That,  here,  the  question 
is  asked  and  answered  by  judicial  tribunals  is  the  best  indication 
that  ours  is  a  constitutional  government.  But  the  intrinsic 
character  of  the  question,  as  one  above  law  not  under  law,  is  still 
the  same,  and  in  saying  that  in  every  State  of  the  Union  each 
private  person  owes  an  allegiance  divided  between  the  State  and 
the  United  States,  there  is  an  implication  that  he  may  be 
obliged  to  answer  thp  question  in  circumstances  where  no  judicial 
decision  would  be  taken  for  an  answer.  And  in  American  courts 
of  law,  as  everywhere  else,  the  answer  is  to  be  attained  by  his- 
torical investigation,  not  by  the  ordinary  juridical  standards  of 
judicial  determination.  No  common  law  even  will  decide  it  ; 
except  as  history  may  show  from  whom  common  law,  public  and 
private,  has  proceeded.  The  method,  therefore,  of  inquiry,  in- 
dependently of  judicial  decisions,  which  is  here  pursued,  is  not 
inconsistent  with  that  deference  to  such  authority,  as  the  best 
exponent  of  laio,  which  is  professed  in  the  outset. 

Of  the  first  two  chapters  of  this  work  a  few  copies  were  pub- 
lished in  August,  1856,  with  the  title,  Topics  of  Jurisprudence 
connected  with  conditions  of  Freedom  and  Bondage.     And  it 


XIV  PREFACE. 

may  be  pertinent  to  add  that  the  third  and  fourth  chapters  were 
also  printed  at  the  same  time,  though,  by  the  failure  of  eyesight, 
the  writer  was  prevented  from  proceeding  with  the  publication 
as  then  intended,  and  the  plan  of  tlie  remaining  portion  was 
afterwards  enlarged,  in  view  of  considering  more  fully  the  ques- 
tions involved  in  the  case  of  Dred  Scott  v.  Sandford,  decided  De- 
cember term,  1856,  in  the  Supreme  Court  of  the  United  States. 

New  York,  August,  1858. 


CONTENTS. 


[Observation. — The  several  chapters  of  this  work,  though  numhered  continu- 
ously, may  be  classified  into  three  parts  or  divisions.  First,  The  Elementary  or  Ab- 
stract Portion,  contained  in  the  first  and  second  chapters ;  Second,  The  Historical 
Portion,  contained  in  the  third  and  following  chapters,  to  the  eleventh,  inclusive ;  and 
Third,  The  Practical  Portion,  contained  in  the  remaining  chapters  of  the  work.  A 
corresponding  arrangement  into  Books  or  Parts,  such  as  is  sometimes  made  in  the 
treatises,  has  not  been  adopted,  from  believing  that  such  subdivisions  practically  di- 
minish facility  of  reference,  and  that  it  will  be  sufficient  to  call  the  attention  of  the 
reader  to  this  essential  feature  in  the  composition.] 


CHAPTER  I. 

LAW  DEFINED  AND  DIVIDED.       ITS  OBJECT.  ORIGr>7,  EFFECT  AND  EXTENT. 

Law  defined. 
sKa  V.  PAOs 

— 1.  The  primary  and  secondary  meanings  of  the  word  lain,   .  .  1 

2.  The  law  of  nature,  whether  so  called  in  the  primary  or  in  the  sec- 
ondary sense,        .  .  .  .  .  .  .1 

_^3.  Two  different  views  taken  of  the  source  of  law,  so  called  in  the  pri- 
mary sense,  .  .  .  .  .  .  .2 

4.  Meaning  of  the  terra  jurisprudence,  and  whether  it  includes  ethics,         3 

5.  Jurisprudence  is  the  science  of  a  rule  identified  with  the  will  of  the 

state,         ........      3 

6.  The  natural  law,  being  law  in  the  secondary  sense,  is  recognized  in 

jurisprudence,        ....  ...      4 

7.  The  natural  law,  being  law  in  the  primary  sense,  is  determined  by 

the  state  when  recognized  in  jurisprudence,        .  .  .5 

8.  In  jurisprudence  the  natural  law  is  not  contrary  to  the  will  of  the 

state,         ........       7 


XVI  CONTENTS. 

LaiD  divided. 

SEC.  PAOE 

9.  Of  national  law,  otherwise  called  municipal,    .             .            .  .7 

10.  International  law,  a  rule  acting  on  nations  as  its  subjects,            .  8 

-11.  The  authority  of  national  and  international  law  compared,     .  .       9 

12.  International  law,  actinfr  on  nations,  is  not  law  in  the  strict  sense,  10 

13.  The  recognition  of  natural  law  in  national  and  international  law,  .     10 

14.  Natural  law  becomes  a  coercive  rule  in  being  identified  with  the  will 

of  the  state.           .            .            .            .             .            .  .11 

15.  InsufiBciency  of  Blackstone's  definition  of  municipal  law,              .  12 
IG.  Who  may  ascertain  the  law  of  nature  for  the  state,    .            .  .13 

17.  Positive  law  and  jurisprudence,  defined,     ....  14 

18.  Comprehensiveness  of  the  term  jin-isprudence,           .            .  .15 

19.  General  or  universal  jurisprudence  defined,            ...  15 

20.  Use  of  the  term  "  law  of  nations,"                    .            .            .  .17 

Oljcct  of  the  law. 

21.  Of  the  distinction  between  persons  and  things,           .            .  .18 

22.  Relations  consist  of  rights  and  obligations,             ...  19 

23.  Rights  of  persons  and  rights  of  things  distinguished,              .  .     20 

24.  Subjects  and  objects  of  rights,         ...  .  .  .20 

25.  Public  and  private  law  distinguished,               .            .            .  .21 

26.  Law  applies  to  territory  and  to  persons,    ....  22 

27.  National  and  international  law  are  tlius  differently  applied,  .  .     23 

Origin  of  law. 

28.  Natural  reason  acknowledged  in  positive  law,              .            .  .24 

29.  Of  legislation  and  the  judicial  function,                  ...  24 

30.  Of  the  authority  of  judicial  precedents,           .            .            .  .25 

31.  Of  customary  law,              ......  26 

32.  Of  the  authority  of  private  jurists,     .              .            .            .  .28 

33.  Of  the  authority  of  foreign  laws,                ....  28 

34.  Of  the  authority  of  universal  jurisprudence,                .             .  .29 

35.  Unwritten  or  customary  law,  a  part  of  positive  law,         .            .  30 

36.  In  what  manner  international  law  is  derived,               .            .  .32 

37.  In  what  manner  international  law  operates,           ...  34 

38.  Universal  jurisprudence,  a  part  of  national  and  of  international  law,     34 

39.  The  law  of  nature  may  be  variously  received,        ...  35 

Ffect  of  law. 

40.  Of  individual  and  relative  rights,          .            .            ,            .  .36 
-  41.  Of  liberty  as  an  effect  of  law,         .....  37 

42.  The  legal  and  the  ethical  idea,  and  objective  and  subjective  apprehen- 
sion of  liberty,            ......  38 


CONTENTS,  XVU 

SEC.  PAGE 

43.  Of  the  condition  of  freedom  and  its  contraries,           .            .  .39 

44.  Of  legal  persons  and  chattel  slaves,            ....  39 

45.  Of  bondage  of  legal  persons,  .  .  .  .  .42 
'4G.  Use  of  the  term  slavery,  .....  42 
^47.  Different  kinds  of  slavery  distinguished,          .            .            .  .43 

Extent  of  laic. 

48.  International  law  divided  into  two  portions,    .            .            .  .44 

49.  The  first  portion  described,  a  law  in  the  secondary  sense,             .  45 

50.  The  second  portion  described,  a  law  in  the  primary  sense,       .  .     46 

51.  Of  the  dominion  of  a  state  and  its  national  law,                 .            .  46 

52.  The  exposition  of  law  is  always  historical,      .            .             .  .47 

53.  The  national  law  is  internal  or  international  according  to  its  personal 

extent,       .            .            .            .            .            .            .  .47 

-54.  Of  native,  alien,  and  domiciled  subjects,     ....  48 

55.  The  law  has  different  extent  to  different  persons,         .            .  .50 

'56.  Its  extent  to  persons  depends  on  the  will  of  the  state,      .            .  51 

57.  Of  laws  of  universal  personal  extent,               .             .            .  .51 

58.  The  extent  of  laws  manifested  in  the  application  of  international 

law,           .            .             .            .             .             .             .  .51 


CHAPTER  II. 

FARTHER  CONSIDERATION  OF  THE  NATURE  OF  PRIVATE  INTERNATIONAL 
LAW  ;  ITS  ORIGIN  AND  APPLICATION.  ITS  EFFECT  UPON  CONDITIONS 
OF    FREEDOM   AND   BONDAGE. 

Conceiitions  preliminary  to  the  existence  of  private  international  laic. 

59.  Connection  of  the  subject  with  axioms  already  stated,  .  .     53 

60.  International  law  acts  on  private  persons  in  being  enforced  by  some 

one  state,  .  .  .  .  .  .  .53 

61.  Private  persons  are  distinguished  by  axiomatic  principles  of  universal 

jurisprudence,        .  .  .  .  ,  .  .54 

62.  Of  the  universal  reception  of  such  maxims  in  international  law,  54 

63.  Statement  of  the  first  two  of  these  maxims,  .  .  .55 

64.  These  maxims  are  law  in  the  secondary  sense,      ...  55 

65.  A  distinction  among  the  relations  recognized  in  iiiternational  law,      .     56 

66.  A  necessary  difference  of  international  cooperation  in  determining 

these  relations,      .             .             .             .             .            .  .57 

67.  Statement  of  the  third  maxim,       .....  58 

68.  Necessary  identity  and  coexistence  of  these  maxims,              .  •     59 

69.  The  international  law,  how  distinguishable  from  internal  law,       .  GO 

B 


XVm  CONTENTS. 

In  what  manner  pruate  international  law  is  developed. 

SEC  PAOK 

70.  Possibility  of  a  maxim  of  iutcrnational  law  which  shall  be  a  rule  of 

action,       .  .  .  .  .  .  .  .GO 

71.  Difference  in  the  power  of  any  one  state  to  determine  one  or  the 

other  class  of  international  relations,       .  .  .  .01 

72.  Difficulty  of  finding  a  rule  greater  in  respect  to  one  class  of  relations 

than  the  other,  .  .  .  .  .  .02 

73.  Under  which  class  of  relations  are  those  of  which  status  or  condition 

is  an  incident,       .  .  .  .  .  .  .03 

74.  The  recognition  of  anterior  subjection  to  a  foreign  law.    .  .  04 
7.5.  Of  rights  which  may  and  which  may  not  continue  after  atjhange  of 

jurisdiction,  .  .  .  .  .  .  .05 

Duty  of  judicial  trihunaU  a2)plying  international  law. 

70.  The  tribunal  must  ascertain  the  will  of  the  state  in  the  case,  .     GO 

77.  Consequence  of  the  recognition  of  the  jural  character  of  the  laws  of 

other  states,           .             .             .             .            .             .  .08 

78.  True  reason  of  the  rule  called  comity,       ....  09 

79.  Huber's  three  maxims,              .             .            .             .             .  .70 

80.  Judicial  comity  is  in  fact  customary  law,              ...  71 

81.  How  later  jurists  have  followed  Huber,           .            .            .  .73 

82.  Story's  version  of  Huber's  third  maxim,                ...  74 

83.  Fcblix  concurring  with  Story,               .             .             .             .  .75 

84.  Practical  effect  of  the  ordinary  doctrine  of  judicial  comity,           .  70 

85.  Judicial  measure  of  the  allowance  of  foreign  laws  under  what  is  call- 

ed comity,  .  .  .  •  •  •  .79 

80.  Laws  of  different  origin  but  similar  in  effect,         .  .  •  79 

87.  Laws  of  different  origin  and  dissimilar  in  effect,  .  .  .80 

88.  The  effect  of  foreign  laws  limited  by  laws  having  universal  personal 

extent,  .  .  .  •  •  •  .81 

89.  Of  exceptions  to  the  extent  of  laws  otherwise  known  as  universal  in 

extent,  .  .  .  •  •  •  .82 

90.  Effect  of  such  exception  in  the  allowance  of  foreign  law  under  what 

is  called  comity,  .  .  .  •  •  .83 

91.  Individual  rights  may  be  attributed  by  laws  of  universal  personal 

extent,  .  .  •  •  •  •  .83 

92.  Laws  of  universal  personal  extent  discriminated  by  judicial  action,         84 

93.  The  juridicial  action  of  all  or  many  nations  is  a  criterion  of  the  ex- 

tent of  laws,         .  .  .  .  •  •  .84 

94.  Universal  jurisprudence   cognizable   from  the  history  of  the   law 

among  all  or  many  nations,  .  .  .  •  • 

95.  Universal  jurisprudence,  derived   a  posteriori^  becomes    applied   a 

priori.       .....-•• 


85 


CONTENTS.  XIX 

SEC.  PAGE 

90.  Judicial  allowance  of  effects  ascribed  to  universal  jurisprudence,      .     87 

97.  But  universal  jurisprudence  has  not  authority  mdcpeudcntly  of  the 

authority  of  some  national  law,  .  .  .  .89 

98.  Universality  predicable  of  law  with  reference  to  different  subjects  of 

its  extent,  nations,  and  individuals,  .  .  .  .90 

99.  Effects  of  universal  jurisprudence  may  be  limited  by  laws  of  uni- 

versal personal  extent,      .  .  .  .  .  .91 

100.  Justification  of  the  recognition  of  a  tiniversal  jurisprudence  notwith- 

standing this  limitation,  .  .  .  .  .92 

101.  Universal  jurisprudence  developed  by  the  application  of  interna- 

tional law,  .  .  .  .  .  .  .93 

102.  How  laws  of  universal  personal  extent  may  be  judicially  discrim- 

inated,      .  .  .  .  .  .  •  .95 

103.  Of  legislation  as  limiting  the  judicial  application  of  elementary  prin- 

ciples,       ........ 


96 


Of  international  law  determining  status  or  personal  condition. 

104.  Of  international  law  regarded  as  a  department  of  private  law,         .  97 

105.  Impropriety  of  the  term  conflict  of  laws,  ...  97 

106.  In  having  international  recognition  laws  have  a  personal  extent,      .  98 

107.  Their  international  recognition  is  not  dependent  on  their  personal 

character,  .  .  .  .  .  •  .98 

108.  Laws  of  personal  condition  or  status  may  receive  international  re- 

cognition, .......  100 

109.  Personality  or  legal  capacity  a  necessary  topic  of  private  interna- 

tional law,  .....••  101 

110.  Relations  incident  to  status  are  internationally  recognized  when  as- 

cribed to  universal  jurisprudence,  ....  10- 

111.  Principles  of  a  universal  jurisprudence  may  be  applied  to  a  partic- 

ular class  of  persons,       ......  103 

112.  How  far  conditions  of  freedom  or  of  bondage  can  be  attributed  to 

universal  jurisprudence,    ....-•  lOo 

113.  Conditions  supported  by  universal  jurisprudence  become  conditions 

under  the  law  of  the  forum,         .....  104 

114.  Conditions  not  so  supported  may  still  be  sustained  by  what  is  called 

comity,      ........  104 

115.  The  recognition  of  chattel  slavery  under  comity  limited  by  universal 

attribution  of  personality,  .  .  .  .  •  lOo 

116.  The  recognition  of  the  bondage  of  legal  persons  limited  by  the  uni- 

versal attribution  of  individual  rights,     .  .  .  -10' 

117.  Slavery  created  by  foreign  law  recognized  where  liberty  is  not  uni- 

versally attributed,  .  .  .  •  •  •  1*^^ 

118.  May  still  not  be  recognized,  though  a  bondage  exists  under  the  local 

law,  ,....••• 


110 


XX  CONTENTS.  ^ 

SEC.  PACK 

119.  Though  disallowed,  slavery  is  not  supposed  to  be  contrary  to  justice 

in  the  place  of  domicil,  .  .  .  .  .110 

120.  Though  disallowed  in  the  forum,  its  incidental  effects  in  the  foreign 

jurisdiction  may  be  recognized,  ....     Ill 

121.  These  principles  may  operate  as  internal  law,  as  well  as  interna- 

tional law,  .  .  .  .  .  .  .112 

122.  Action  of  judicial  tribunals  distinguished  from  the  autonomic  act 

of  the  sovereign,  ......     112 


CHAPTER  III. 

OF  THE  ESTABLISHMENT  OF  MUXICIPAL  (.VATIOXAL)  LAW  IN  THE  EXG- 
LISII  COLONIES  OF  NORTH  AMERICA.  PERSONAL  EXTENT  OF  THE 
COMMON    LAW    OF    ENGLAND. 

Political  foundation  of  law  in  the  colonies. 

^^■-^2.0.  On  9,  change  of  sovereigns  the  territorial  law  of  a  country  con- 
tinues,    ........    114 

12-1.  The  personal  quality  of  laws  manifested  in  colonization,  .  115 

125.  Of  the  extent  of  English  law  in  countries  acquired  by  the  British 

crown,     .  .  .  .  .  .  .  .     IIG 

126.  The  common  law  of  England  accompanied  the  English  colonist  as 

a  personal  law,  .  .  .  .  .  .  .118 

~  127.  Local  laws  of  the  colonies  required  not  to  be  contrary  to  that  law,     119 

_., ^128.  Of  political  authority  in  America  derived  from  the  compacts  of  the 

colonists,  .  .  .  .  .  .  .120 

129.  Of  the  force  of  legislative  declarations  by  the  local  governments  of 

the  rights  of  private  persons,      .....     123 

130.  Of  the  common  law,  having  personal  extent,  as  a  political  guaran- 

tee of  the  rights  of  the  colonists,  ....     124 

131.  Of  English  common  law  as  limiting  the  legislative  power  of  the 

Government,       .  .  .  .  .  .  .120 

132.  The  common  law  of  England  had  the  character  of  a  national  law 

in  the  colonics,    .  .  .  .  .  .  .129 

Of  personal  condition  as  an  effect  of  English  laio  in  the  colonies. 

133.  Of  freedom  or  liberty  as  the  result  of  positive  law,  both  public  and 

private,  .  .  .  .  .  •  .1-9 

134.  Civil  and  political  liberty,  liberty  by  public  and  by  private  law, 

distinguished,      .  .  .  .  .  .  .130 

135.  The  idea  of  civil  freedom  includes  that  of  a  political  guarantee,  130 


CONTENTS.  XXI 

SEC.  '  PAGE 

130.  The  liberties  of  the  English  colonists,  rested  on  common  law  of 

national  cliaracter,  .  .  .  .  .  .131 

137.  The  entire  body  of  common  law  Avas  not,  as  a  personal  law,  trans- 

ferable to  the  colonics,  .....     132 

138.  The  right  of  property  under  this  personal  law,  existed  only  in  refer- 

ence to  things  known  to  the  law  of  England,     .  .  .     133 

139.  The  English   law  of  individual  rights,  and  capacity  for   relative 

rights,  was  the  law  of  status  for  the  English  colonist,  .  .133 

140.  Of  the  guarantees  in  English  law  of  the  rights  incident  to  free  con- 

dition,     ........     134 

141.  Villenage  at  common  law  was   never  transferred  to  the  colonies 

under  personal  laws,       ......     135 

142.  The  relation  of  master  and  servant  under  the  law  so  transferred 

was  one  founded  on  consent,       .  .  .  .  •     137 

143.  Of  the  rights  of  the  master,  incident  to  that  relation,  in  respect  to 

third  persons,     .......     138 

144.  Of  universal  jurisprudence,  affecting  personal  condition,  forming 

a  part  of  English  common  law,  .  .        "    .  .139 

145.  Ordinary  apprehension  of  the  extent  of  the  attribution  of  personal 

liberty  by  English  law,  .....     140 

146.  In  what  sense  the  law  of  nations  is  said  to  be  part  of  the  law  of 

England,  .  .  .  .  .  ...     140 


CHAPTER  IV. 

ESTABLISHMENT  OF  MUXICIPAL  LAW  IN  THK  COLONIES, — THE  SUBJECT  CON- 
TINUED. OF  PRINCIPLES  OF  UNIVERSAL  JURISPRUDENCE,  RELATING 
TO  FEEEDOM  AND  ITS  0PP0SITE8,  ENTERING  INTO  THE  COMMON  LAW 
or  ENGLAND. 

Of  the  evidence  of  the  existence  of  a  principle  of  U7iiversal  juris- 
prudence. 

147.  Proposed  exhibition  of  doctrines  of  universal  jurisprudence  alFect- 

ing  status  at  the  planting  of  the  colonies,  .  .  .     142 

148.  Of  the  Roman  law  as  an  exposition  of  universal  jurisprudence,  143 

149.  Conception  of  jurisprudence  by  the  civilians,  as  including  ethics, 

pointed  out,         .......     145 

Of  the  analysis  of  law  which  is  made  in  the  Institutes. 

150.  Of  the  jus  publicum  in  the  Roman  law,      ....     140 

151.  Analysis  of  jus  privatum  according  to  its  supposed  origin  ;  recog- 

nition of  a  jus  naturale,  .  .  .  .  .147 


XXll  CONTENTS. 

SEC.  PAGE 

152.  Of  the  jus  gentium  and  jus  civile  or  jus  proprium  ;  recognition  of 

naturalis  ratio,    .......     148 

Of  the  attribution  of  chattel  slavery  to  jus  gentium  l>y  the  Roman 
jurists. 

153.  The  Romans  held  slavery  arising  from  captivity  to  be  based  on 

natural  reason,    .......     149 

^  154.  The  Romans  ascribed  all  slavery  to  the  jus  gentium  and  to  natural 

reason,     ........     151 

155.  Illustration  of  the  meaning  of  constitutio  juris  gentium  in  the  Ro- 
man law,  .......     152 

'     156.  In  Roman  law  slavery  was  the  chattel  condition  of  a  natural  person,     153 

157.  The  same  doctrine  recognized  in  the  jurisprudence  of  all  the  an- 

cient states,        .......     154 

Of  changes  which  have  talcen  place  in  universal  jurisprudence  affect- 
ing personal  condition. 

158.  How  the  fact  of  such  change  may  be  known,  .  .  .     155 

159.  Changes  occurring  in  mternational  law  are  not  simultaneous  among 

all- nations,  .......     155 

IGO.  Efifect   of  Christianity   in   modifying   slavery  imder  the   Roman 

empire,  .......     156 

161.  By  this  modification  slavery  was  no  longer  attributable  to  univer- 

sal jurisprudence,  ......     157 

162.  Similar  effect  of  Christianity  on  slavery  among  the  nations  of  north- 

ern Europe,        .......     157 

Of  universal  jurisprudence  supporting  the  slavery  of  Negroes  and 
Indians. 

'   163.  Of  diflcrcnce  of  religious  creed  as  a  foundation  of  chattel  slavery 

in  modern  times,  .  .  .  .  .  .159 

164.  Chattel  slavery  of  infidels  and  heathens  supported  by  universal  ju- 

risprudence,        .  .  .  .  .  .  .160 

165.  In  the  fifteenth  century  the  holding  of  heathen  negroes  as  slaves 

was  so  supported,  ......     161 

166.  The  traffic  in  negro  slaves  was  recognized  by  all  the  maritime  na- 

tions of  Europe,  .  .  .  .  .  .163 

167.  Modern  universal  jurisprudence  supporting  chattel  slavery  has  had 

limited  personal  extent,  .  .  .  .  .164 

168.  Effect  of  a  conversion  to  Christianity  upon  slave-condition,  how  to 

be  known,  .......     165 


CONTENTS.  XXm 

61tC.  PAOB 

1G9.  Difficulty  of  deriving  a  rule  of  universal  jurisprudence  on  this 

point  from  the  practice  of  modern  nations,        .  .  .166 

170.  How  in  the  law  of  nations  in  respect  to  slaves  its  reception  of  uni- 

versal jurisprudence  may  be  known,      ....     108 

171.  Analogy  probabl}-  found  in  the  cU'ect  of  Christianity  upon  the  ear- 

lier slavery  of  Euroi)eans,  .....     170 

172.  The  question  might  be  difi'erently  answered  at  different  times  dur- 

ing the  colonial  period,  .....     170 

Of  the  rule  of  xinuersal  jurisprudence  2Mrtlcularly  exhibited  hy  the 
juridical  action  of  Crreat  Britain. 

173.  Why  the  common  law  of  every  state  must  exhibit  its  own  recep- 

tion of  universal  jurisprudence,  ....     17X 

174.  Christianity  a  part  of  conuuon  law  as  it  may  have  the  character  of 

universal  jurisprudence,  .....     171 

175.  Slavery  not  regarded  by  a  state  as  contrary  to  Christianity  if  sus- 

tained in  any  jpart  of  its  dominions,        ....     172 

176.  English  statutes  recognizing  the  lawfulness  of  commerce  in  negro 

slaves,  .......     173 

177.  Inference  that  property  in  negro  slaves  was  recognized  by  the  law 

prevailing  in  England,     ......     176 

178.  The  condition  of  a  negro  brought  to  England,  determined  cither  by 

universal  jurisprudence  or  local  law,      ....     177 

179.  It  would  be  determined  cither  as  a  question  of  the  international  or 

of  the  internal  law,        ......     177 

« 
The  question  of  the  lawfulness  of  negro  slavery  in  England  consid- 
ered as  one  arising  under  internal  law. 

180.  Of  the  dictum,  '■  in  English  air  slaves  cannot  breathe,"  and  a  statute 

of  Edward  VI., 178 

181.  Case  of  Butts  v.  Penny,  .....  179 

182.  Case  of  Chambers  v.  Warkhouse,     •  .  .  .  .  180 

183.  Case  of  Gelly  v.  Cleve, 181 

184.  Case  of  Chamberlayne  v.  Harvey,    .....  181 

185.  Cases  of  Smith  v.  Erown  and  Cooper,  and  of  Smith  v.  Gould,  Holt's 

decision,               .             .             ...            .             .  •  182 

186.  Case  of  Pearne  v.  Lisle,  Hard  wick's  decision,    .             .  .  185 

187.  Case  of  Shanley  v.  Harvey,  Northingtou's  decision,             .  .  180 

188.  Inferences  from  the  decisions  that  trover  would  not  lie  for  a  negro,  180 

189.  Attempted  statement  of  the  legal  distinction  ill  these  cases,  .  188 

190.  Lord  ^lansfield's  decision  in  Somerset's  case,     .            .  •  189 

191.  Inconsistencies  in  that  opinion,         .            .            •            .  •  191 


XXIV  CONTENTS. 

CHAPTER  V. 

THE  ESTABLISHMENT  OF  MUNICIPAL  LAW  IN"  THE  COLONIES — THE  SrBJKCT 
CONTINUED.  PRINCIPLES  DETERMINING  THE  CONDITION  OF  PERSONS 
TO  WHOM  THE  LAW  OF  ENGLAND  DID  NOT  EXTEND  AS  A  PERSONAL  LAW. 

Circumstances  determining  the  extent  of  laws  of  condition  in  the 
colonies. 

SEC.  PAGE 

192.  The  territorial  and  personal  extent  of  laws  of  condition  depends  on 

some  possessor  of  sovereign  power,        ....     195 

193.  Distinction   between   the   personal  and  territorial  extent  of   the 

English  law  of  free  condition,     .....     196 

194.  The  liberties  of  the  colonists  ascribed  to  positive  law,  not  to  natu- 

ral law,  .  .  .  .  .  .  .197 

Of  law  determining  the  coiulition  of  persons  not  of  European  race. 

195.  Classification  of  natural  persons  in  the  colonies  who  were  alien  to 

the  law  of  England,       .  .  .         *  .  .  .198 

196.  The  law  applicable  to  the  original  inhabitants,  how  derived,     .  199 

197.  The  law  applicable  to  persons  coming  from  other  countries  was  a 

part  of  international  law,  .....     200 

198.  Necessity  of  recurring  to  principles  of  universal  jurisprudence,  201 

199.  Of  such  principles  determining  the  condition  of  the  aboriginal  in- 

habitants. .  .  .  .  .  .  .202 

200.  Of  such  principles  supporting  the  introduction  of  negro  slaves,  205 

201.  Negro  slavery  an  effect  of  customary  law,         .  .  .  206 

202.  Term  colonists  in  the  charters  how  to  be  understood,  .  .    207 

203.  Power  of  the  imperial  government  to  determine  the  condition  of 

imported  negroes,  ......     208 

204.  Status  of  the  baptized  African  or  Indian,  how  determined  by  custo- 

mary law,  .......     209 

205.  The  condition  of  slavery  an  effect  of  the  local  law  of  a  colony,  212 

206.  Of  the  Roman  law  of  manumission,  .  .  .  ,213 

207.  Condition  of  the  free  Indian  or  emancipated  negro  was  an  effect  of 

the  local  law  of  a  colony,  .....     214 

208.  The  two  s3-stems  of  personal  laws  were  equally  jural  in  character,     217 

Of  other  laws  determining  the  condition  of  white  persons. 

209.  Extension  of  the  English  law  of  free  condition  to  colonists  of  other 

European  nations,  .....:  217 

210.  Origin  of  the  servitude  of  white  persons  for  terms  of  years,     .  218 

211.  Legal  incidents  of  the  condition  of  such  persons,     ,  ,  .  220 

212.  Extension  of  English  dominion  in  territory  first  occupied  by  other 

Europeans,  .  ,  .  .  .  -.^221 


CONTENTS. 


XXV 


CHAPTER  VI. 

THE  ESTABLISmiENT  OF  MUNICIPAL  LAW  IX  THE  COLONIES — THE  SUBJECT 
CONTINUED.  LOCAL  LEGISLATION  DETEEMINING  CONDITIONS  OF  FREE- 
DOM OE  OF  BONDAGE. 

Of  the  power  of  the  colonial  governments  over  slavery  under  the  pub- 
lic Iciw. 

SKC.  PAGE 

213.  National  law  affecting  the  subject  distinguished  from  local  law,       .     222 

214.  The  local  legislative  power,  in  respect  to  Africans  and  Indians,  was 

not  limited  by  English  common  law,      .    ■        .  .  .     223 

215.  Nor  in  respect  to  slaves  by  the  guarantee  of  the  right  of  property  to 

the  English  owner,  ......    224 


Of  the  actual  legislation  of  the  colonies. 

216. 

Apparent  necessity  of  some  legislation  in  reference  to  the  condition 

of 

slavery,           .            .            .            . 

225 

217. 

Object 

and  extent  of  the  view  here  taken  of  colonial  legislation, 

226 

218. 

Legislation 

of  Virginia,         ...... 

228 

219. 

K 

u 

]Mar3-land,            .            .            .            . 

247 

220. 

(( 

c 

Massachusetts,           ..... 

254 

221. 

(( 

(( 

New  Hampshire,              .             .            .       '     . 

264 

222. 

(( 

C( 

Connecticut,               ..... 

267 

223. 

a 

a 

Rhode  Island,       ..... 

273 

224. 

a 

Cl 

New  York,                  ..... 

277 

225. 

u 

(( 

New  Jersey,         ..... 

282 

226. 

u 

(( 

Pennsylvania,             .            .            .            .            . 

280 

227. 

u 

a 

Delaware,             ..... 

291 

228. 

u 

:( 

,  North  Carolina,          ..... 

293 

229. 

(( 

'= 

South  Carolina,                .... 

297 

230. 

u 

a 

Georgia,         ...... 

309 

CHAPTER  VII. 

OF  THE  PRIVATE  INTERNATIONAL  LAW  EXISTING  FOR  THE  SEVERAL  PARTS 
OF  THE  BRITISH  EMPIRE  DURING  THE  COLONIAL  PERIOD,  AND  RELATING 
TO  CONDITIONS  OF  FREEDOM  AND  BONDAGE — OF  THE  CONDITIONS  UNDER 
WHICH  SUCH  A  LAW  MIGHT  EXIST. 


General  principles  respecting  the  existence  of  internatioiuil  laic. 

231.  International  law  based  on  the  possession  of  sovereign  power  by  dis- 

tinct persons,      .  .  .  .  .  .  .312 

232.  Of  an  integral  possession  of  sovereign  power  by  states  or  nations,      312 


XXVI  CONTENTS. 

SKC.  I  PAGE 

233.  Of  a  distributed  possession  of  the  sovereign  powers  of  a  state  or 

nation,     ........     314 

234.  Of  an  international  or  quasi-international  law  arising  from  such 

distribution,         .  .  .  .  .  .  .315 

Of  tTie  international  relations  of  the  different  parts  of  the  British 
Empire. 

235.  Sovereign  powers,  how  distributed  in  the  empire  during  the  colo- 

nial period,  .......  315 

23G.  Of  jurisdiction,  and  its  recognition  in  private  international  law,  310 

237.  Of  domicil  as  distinguished  in  the  international  law  of  status,        .  31 G 

238.  Of  the  portions  of  the  British  empire  distinguished  in  re.spect  to 

jurisdiction  and  domicil,  .....     317 

Characteristics  of  the  law  determining  the  condition  of  persons  not 
domiciled. 

239.  Public  and  private  character  of  the  law  determining  the  condition 

of  aliens  in  a  colony,      .'....     318 

240.  The  condition  of  such  persons  as  affected  by  circumstances  already 

stated,     .  .......     318 

241.  Of  a  distinction  among  such  persons  according  to  differences  of 

phj^sical  constitution,      .  .  .  •  .  .319 

242.  Origin  and  continuance  of  law  determining  the  condition  of  the 

alien  of  white  race,        ......     320 

243.  Origin  and  continuance  of  law  determining  the  condition  of  the 

alien  of  African  or  Indian  race.  ....     321 

244.  The  condition  of  the  last,  whether  bond  or  free,  determined  by  the 

local  sovereignty,  ......     322 

245.  The  right  of  the  owner  of  slaves  how  far  resting  on  national  law 

of  the  empire,     .......    323 

246.  Franchises  enjoyed  by  persons  of  African  or  Indian  race  were  not 

supported  by  the  national  law,  ....     324 

247.  Bondage  of  indentured  white  servants  partially  sustained  by  the 

national  law,       .......     325 

248.  The  law  applying  to  such  persons  is  properly  described  as  interna- 

tional law,  .......     326 

249.  Character  of  the  law  applicable  to  minor  apprentices,  .  .  326 


CONTENTS..  XXVll 


CHAPTER  VIII. 


OF  THE  PRIVATE  IKTEKXATIONAL  LAW  OF  THE  COLOXIAL  PERIOD  AFFECTING 

CONDITIONS  OF   FREEDOM  AND   BONDAGE — THE  SUBJECT  CONTINUED 

OF  ITS  ACTUAL  EFFECT  OR  OPERATION. 

Of  law  on  this  subject  derived  from  a  colonial  source. 

SEC.  PAGE 

250.  Of  the  origin  of  the  law  to  be  ascertained,  either  in  legislation  or 

in  judicial  decision,         ......     328 

251.  Of  the  deflciency  of  legislative  enactments  on  this  topic,  .  329 

252.  Of  the  deficiency  of   recorded  colonial  judicial  decision  on  this 

topic,       ........     330 

253.  Probable  international  practice  with  reference  to  white  servants 

and  minor  apprentices,  .....     330 

254.  The  term  servants  in  intercolonial  agreements  probably  included 

slaves  also,  .......     331 

Of  law  on  this  subject  derived  from  British  precedents. 

255.  Of  the  case  of  Somerset  as  a  precedent  of  international  law,  .     331 

256.  Of  two  Scotch  cases  having  the  like  character,  .  .  332 

257.  Authority  of  such  cases  compared  with  that  of  foreign  precedents,     333 

Of  law  on  this  subject  as  derived  from  foreign  2)^ccede7its. 

258.  Reasons  for  recognizing  a  customary  international  private  law,  in- 

dependent of  what  is  called  comity,       ....     333 

259.  Authorities  on  the  law  of  the  Netherlands,        .  .  .  335 
2G0.  Case  of  the  Polish  refugee  in  Holland,         ....     336 

261.  Authorities  on  the  law  of  France,  ....  336 

262.  Authorities  on  the  law  of  German)',  ....  339 

263.  Of  the  distinction  of  race  as  noticed  or  not  in  these  authorities,  340 
2G4.  The  customaiy  law  of  France  as  exhibited  in  the  case  of  Verdelin's 

slaves,  and  of  Francisque,  .....     342 

265.  The  rule  against  the  recognition  of  slavery,  as  derived  from  these 

authorities,  .......     344 

Of  the  rule  of  2rroj)crty  of  alien  owner  in  transit  protected'ly  inter- 
national law. 

266.  How  Puffendorf  and  Vattel  are  commonly  cited  on  this  point,      .  345 

267.  Vattel's  statement  of  the  stranger's  right  of  transit,     .  .  345 

268.  His  limitation  of  the  extent  of  this  right,    ....  347 

269.  The  criterion  of  property  is  to  be  taken  from  these  writers,     .  348 

270.  Neither  MTiter  recognizes  men  as  objects  of  property,         .  .  348 


XXVm  CONTENTS. 

SEC.  PAGE 

271.  Why  universal  jurisprudence  must  be  taken  as  determining  prop- 

erty undci'  the  rule,         ......  349 

272.  Inquiry  into  this,  why  postponed,  ....  349 

273.  Other  proof  from  Vattel  of  the  inapplicability  of  the  rule,  .  350 

274.  The  duty  of  the  state  under  international  law  differs  according  to 

circumstances,     ........     351 

275.  Duty  of  judicial  tribunals  compared  with  that  of  the  state,     .  352 

276.  The  duty  of  the  tribunal  is  found  in  the  customary  ju(ficial  prac- 

tice of  foreign  nations,    ......     353 

277.  Slavery  recognized  under  the  rule  only  when  maintained  by  uni- 

versal jurisprudence,     ......     353 


CHAPTER  IX. 

OF  THE  PBIVATK  INTEKNATIOXAL   LAW  OF  THE  COLOXIAL  PERIOD  AFFECT- 
ING 00XDITI0N8  OF  FREEDOM  AND  BONDAGE THE  SUBJECT  COXTINTED 

EXAMINATION  OF  SOMBKSEx's  CASE    IN  THIS  CONNECTION. 

View  Of  the  general  principles  applicable  to  the  circumstances  of  this 

case. 

278.  In  what  connection  such  cases  are  here  considered,  .  .     355 

279.  Reference  to  doctrines  of  private  international  law  stated  in  the 

second  chapter.    .......     355 

280.  The  doctrine  of  universal  jurisprudence  anteriorly  applied  to  the 

negro  race,  .......  35G 

281.  How  far,  as  part  of  English  common  law,  it  had  sustained  slavery,  357 

282.  Slavery  of  negroes  attributable  to  it  only  while  heathens,         .  358 

283.  Slavery  not  attributable  to  it  if  not  an  absolute  chattel  condition,  359 

284.  If  not  so  attributable,  slaves  not  property  at  common  law  nor  un- 

der the  rule  of  transit,    ......     359 

285.  Universal  jurisprudence,  known  in  tlie  practice  of  nations,  might 

have  changed,      .......  360 

286.  Proof  that  it  had  changed,  again  stated,  .  .  .  360 

287.  Slavery  therefore  not  supported  by  universal  jurisprudence,  .  361 

288.  Nor  by  English  common  law,  nor  the  international  rule  of  transit,  362 

289.  Might  be  recognized  on  this  ground  in  places  where  slavery  con- 

tinued,    ........     362 

290.  But  not  known  as  effect  of  universal  jurisprudence  when  rejected 

in  the  internal  law,         ......     363 

291.  Hence,  not  so  known  in  Massachusetts  and  the  British  isles;  inde- 

pendently of  foreign  precedent,  ....     364 

292.  Nor  sustained  by  the  law  having  a  national  and  personal  extent  for 

the  master,  .......     364 


CONTENTS.  XXIX 

SEC.  PAGE 

293.  Classification  of  the  preceding  views  of  the  question,  .  .     3G5 

294.  After  these  considerations  the  reference  to  what  is  called  comity 

remains,  .......     3GG 

295.  Reference  to  the  means  of  distinguishing  the  extent  of  laws,    .  306 

296.  Personal  liberty  not  then  attributed  to  all  in  Massachusetts  and 

the  British  Islands  by  legislation.  ....     366 

297.  Effect  of  former  international  recognitions  of  slavery,  .  .  367 

298.  If  liberty  attributed  by  internal  law  to  all  in  Massachusetts  and  the 

British  Islands,  .  .  .  .  .  .367 

299.  Legal  personality  may  have  been  attributed  to  all,        .  .  368 

300.  Supposed  insuflBciency  of  such  attribution,  if  of  legal  personality 

merely,  .......     368 

301.  Attribution  of  individual  rights  where  some  do  not  actually  enjoy 

personal  liberty,  ......  369 

302.  How  this  may  have  been  in  Massachusetts  or  the  British  Islands,  370 

303.  Reasons  against  admitting  their  universal  extent  in  Massachusetts,  370 

304.  Personal  liberty  not  then  enjoj^cd  by  all  in  the  British  Islands,      .  370 

305.  How  a  natural  law  is  distinguishable  in  this  connection,  .  371 

306.  The  extent  of  the  local  law  determinable  by  reference  to  foreign 

decisions,  .......     372 

307.  Its  extent,  so  determined,  in  Massachusetts  and  the  British  Islands, 

precluded  comity,  ......     372 

Ajiplication  of  the  foregoing  to  Lord  Mansfield's  reasons  for  his 
decision. 

308.  The  judgment  vindicated  by  international  law  operating  in  three 

forms,  .......     373 

309.  Inconsistency  of  Lord  Mansfield  resulting  fi"om  his  doctrine  of  pub- 

lic law,  .......  374 

310.  The  nature  of  the  inconsistency  further  explained.         .  .  375 

311.  Further  illustration  of  the  same,      .....  375 

312.  Attempt  to  state  the  correct  doctrine  of  international  law  in  such 

case,  ...  ....     377 

313.  Whether  negro   slavery   had,   before  that  case,   been  lawful   in 

England,  .......     378 

314.  Stowell's  over-statement  of  the  previous  recognition  of  its  law- 

fulness, .......     378 

315.  The  previous  practice  of  holding  negroes  in  bondage  there,  why 

not  legalized,       .......     379 

316.  How  legal  conclusions  might   be  different  for   England   and   the 

colonies,  .......     381 


V 


XXX  CONTENTS. 


CHAPTER  X. 


OF    THE    I'BIVATE    INTEKNATIONAL    LAW  OF    THE  COLONIAL    PERIOD — THE 

SUBJECT  OONTIXUED OF  DOtTKIXES  OF  THIS  LAW  APPLYIXG  TO  CASKS 

OTHER  THAN  THOSE  EESEMBLIXO  SOMEESEt's  CASE. 

General  principle  derived  from  the  jural  character  of  all  law. 

SEC.  PAGE 

317.  The  tribunals  of  the  forum  recognize  the  lawfulness  of  slavery  in 

the  place  of  domicil,        ......     3S3 

Question  of  status  on  return  to  slave  domicil. 

318.  Opinion  of  Gudelin  on  this  point,  ....     38-t 

319.  Position  of  slave,  in  the  modern  case,  like  that  of  manumitte^l 

slaves,  .......     38-4 

320.  If  he  had  before  been  a  chattel  slave  he  must  have  acquired  person- 

ality and  domicil,  ......     386 

321.  How  possibly  otherwise  if  not  a  chattel  but  a  legal  person  in 

bondage,  .......     386 

Other  questions  of  pirivate  international  late. 

322.  The  master's  claim  customarily  decided  by  the  judiciary,  not  the 

executive,  .......     387 

323.  Deficiency  of  juristical  opinion  on  other  supposable  cases,         .  388 

324.  International  effect  of  common  law  as  a  law  personal  to  the  Eu- 

ropean colonist,  ......     388 

325.  The  owner'.s  property  was  not  jMcwi-intemationally  guaranteed  by 

that  law, 389 

326.  The  condition  of  a  free  negro  w^as  not  j^Mosi-internationally  guaran- 

teed by  a  national  law,    ......     390 

327.  Whether  any  disabilities  of  the  emancipated  negro  were  ascribed 

to  a  universal  jurisprudence,       .....     390 

328.  Negro  slavery  not  longer  ascribable  to  the  law  of  nations,  meaning 

universal  jurisprudence,  .....     391 

329.  The  slave-trade  not  then  contrary  to  the  law  of  nations,  in  the 

sense  of  international  law,  .....     392 


CONTENTS.  ICXXl 


CHAPTER  XI. 


OF  THE  INVESTITURE  FN  THE  PEOPLE  OF  THE  SEVERAL  STATES  AND  OP 
THE  UNITED  STATES  OF  THAT  SOVEREIGN  POWER  "WniCH  IS  THE  BASIS 
OF  CONDITIONS  OF  FREEDOM  OR  OF  BONDAGE. 

Uoio  tJie  possession  of  soiereiqn  x>oicer  may  ie  determined. 

SEC.  P^^GE 

330.  Change  of  sovereignty  in  the  Revolution,     ....     394 

331.  Of  the  relation  between  freedom  and  law,  .  .  .  394 

332.  The  possession  of  sovereign  power  is  not  determined  by  law  in  the 
ordinary  sense,  .  .  .  .  ■  .  .395 

333.  Its  possession  is  an  historical  question,  .  .  .  396 

334.  The  wi-itten  constitutions  of  the  United  States  presuppose  an  exist- 

ing sovereignty,  .  .  .  .  .  •  .390 

335.  The  facts  indicating  the  possession  of  sovereignty  may  be  differently 

understood,  .......     398 

History  of  the  change  ichich  occurred  in  the  Revolution. 

33G.  The  word  peoj^le  in  the  constitutions  designates  only  a  portion  of 

the  inhabitants,  ......     398 

337.  How  this  people  was  discriminated  at  the  time  of  the  Revolution,        399 

338.  Sovereignty  before  that  time  had  been  held  by  the  local  govern- 

ments,    ........     399 

339.  Change  in  the  location  of  sovereign  power  which  occurred  in  the 

Revolution,          .             .             .             .             .             .  .400 

340.  The  people  distinguished  by  their  action  in  the  Revolution,       .  401 

341.  National  and  local  power  were  not  simultaneously  transferred,  .     403 

342.  The  people  of  the  United  States  assumed  a  national  sovereignty,  403 

Of  the  manner  in  ichich  sovereignty  has  Iteen  held  hij  the  people  of 
the  United  States. 

343.  Their  corporate  existence  as  the  people  of  distinct  States  continued 

of  necessity,         .......     404 

344.  But  the  principle  of  majority  did  not  necessarily  obtain  in  their  na- 

tional existence,  ......     405 

345.  The  same  integral  nationality  was  manifested  in  the  Revolution,  in 

the  Confederation,  and  in  the  Constitution,        .  .  .     40G 

340.  Statement  of  the  theory  of  the  location  of  sovereignty  under  the 

Constitution  which  is  here  adopted,        ....     407 


XXXll  CONTENTS. 


Extent  and  nature  of  the  authority  field  hy  the  people  of  the  United 

States. 

SEC.  PAGE 

347.  Of  the  territory  occupied  by  the  original  thirteen  States,    .  .  409 

348.  Of  the  territory  afterwards  acquired  by  the  United  States,       .  410 

349.  Of  the  formation  of  States  in  territory  held  by  the  United  States, .  411 

350.  The  power  of  the  political  people  of  the  United  States  is  independ- 

ent of  law  and  of  con.scnt  of  individuals,  .  .  .     412 

351.  That  power  is  unlimited,  or  absolute  in  its  nature,        .  .  413 


CHAPTER  XII. 

CONDITIONS  OF  FREEDOM  AXD  BOXDAGE  COXSIDERED  WITH  BEFKREXCE  TO 
THE  PUBLIC  LAW  OF  THE  CXITKD  STATES. 

Liberty  considered  in  connection  tcith  the  investiture  of  sovereign 

poxcer. 

352,  Political  and  civil  liberty  distinguished,        .  .  .  415 

353,  Quality  of  political  liberty  variable  according  to  its  distribution,         416 

354,  Two  classes  of  states  distinguished  according  to  the  location  of  ul- 

timate sovereign  power,  .....  417 

355.  On  the  use  of  the  terms  republic  and  constitution^        .  .  418 

356.  Conditions  of  the  connection  between  political  and  civil  liberty,    ,  419 

357,  Of  a  constituted  government  distinct  from  the  possessor  of  sove- 

reign power,       .......     420 

Relation  of  the  Con»titution  of  the  United  States  to  the  condition 
of  private  persons. 

358,  Of  the  manner  in  which  personal  condition  may  depend  on  public 

law, 421 

359.  Twofold  nature  of  the  Constitution,  being  evidence  of  fact  and  a 

rule  of  action,  ......     422 

360.  Quality  of  the  power  held  by  the  Government  of  the  United  States,    423 

361.  Sovereignty,  how  distributed  between  the  national  Government  and 

the  States,  .  .  .  .  .  .  ,424 

362,  Of  powers  whose  nature  may  vary  by  their  investiture  in  the  na- 

tional Government  or  in  the  States,       ....     426 

Means  of  distinguishing  the  sources  from  which  the  private  law  may 

proceed. 

363.  Law  as  opposed  to  liberty  is,  under  the  Constitution,  a  rule  already 

determined,  and  not  arbitrary  will,        ....    426 


CONTENTS.  XXXm 

SEC.  PAGE 

364.  Of  the  extent  of  judicial  power  under  the  Constitution,  to  deter- 

mine the  .source  of  law,  .....     427 

365.  Supremacy  of  the  national  judiciary  in  determining  the  law  con- 

tained in  the  Constitution,  .....     428 

366.  For  all  private  persons  its  decisions  arc  the  supreme  criterion  of 

law,         ........    429 

367.  How  State  sovereignty  must  yet  be  independent  of  judicial  power,     430 

Of  the  extent  of  the  judicial  poicer  of  the  national  Ooternment  as 
defined  in  the  Constitution. 

368.  Of  its  extent  to  cases  under  certain  laws  and  cases  between  certain 

persons,  .......     432 

309.  Of  the  terms  State  and  citizen  employed  in  describing  the  extent 

of  judicial  power.  ......     433 

370.  Meaning  of  the  term  State  in  this  connection,  .  .  433 

371.  Decision  of  Supreme  Court  that  negroes  are  not  citizens  as  the 

term  is  used  in  the  Constitution,  ....     434 

372.  Argument  that  in  this  connection  the  term  means  any  free  person 

having  a  domicil,  ......     435 

373.  Extent  of  the  judicial  power  held  by  the  State  Governments,  .  437 


CHAPTER  Xm. 

CONDITIONS  OF  FKEEDOM  AND  BONDAGE  CONSIDERED  WITH  REFEEENCE  TO 
THE  PIJBLIO  LAW  OF  THE  UNITED  STATES — THE  SUBJECT  CONTINUED — 
OF  THE  DISTEIBUTION  OR  CLASSIFICATION  OF  PRIVATE  LAW  AFFECTING 
THOSE  CONDITIONS  WHICH  MAY  BE  MADE  UNDER  A  EEFERENCE  TO 
PUBLIC  LAW. 

Private  law  in  the  United  States  distinguished  hy  its  territorial  extent. 

374.  Law  is,  in  extent,  either  territorial  or  personal,        .  .  .     438 

375.  Variety  of  the  territorial  jurisdiction  of  the  powers  of  the  national 

Government,        .......     438^ 

376.  The  Territories  of  the  United  States  are  under  the  jurisdiction  of 

the  national  Government,  .....     439 

377.  National  municipal  law  and  local  municipal  law,  .  ,  440 

378.  The  Constitution  of  the  United  States  a  part  of  the  national  mu- 

nicipal law,  .......     441 

379.  The  laws  of  the  several  States  have  no  territorial  extent  beyond 

their  limits,  .......     441 


XXXIV  CONTENTS. 


Private  law  in  the  United  States  distinguished  hy  its  personal  extent. 

SBC.  PAOK 

380.  Necessary  variety  in  the  personal  extent  of  law,      .  .  .    441 

381.  Alienage  in  international  and  internal  law,         .  .  .  442 

382.  International  relation  of  those  among  whom  the  sum  of  sovereign 

power  is  distributed,       ......     443 

383.  In  their  local  sovereignty  the  States  are  towards  each  other  like  in- 

dependent nations,  ......     443 

384.  Alienage  in  respect  to  national  and  local  law ;  foreign  and  domestic 

aliens  distinguished,        ......     444 

Of  international  laic  as  a  part  of  the  internal  laws  of  the  United 

States. 

385.  National  municipal  law  of  the  United  States  includes  international 

law.  ........    445 

386.  This  international  law  is  determined  by  the  different  sources  of  in- 

ternal law,  .......    445 

387.  Applied  in  the  United  States  to  two  classes  of  aliens,  called  foreign 

and  domestic  aliens,        ......     446 

388.  How  far  necessarily  the  same  in  all  the  States;  how  far  maybe 

different,  .  .  .  .  .  .  .447 

389.  A  portion  of  this  law  may  be  contained  in  the  Constitution  of  the 

United  States,     .  .  .  .  .  .  .448 

390.  Incidents  of  naturalization  to  be  considered,      .  .  .  449 

391.  Powers  of  the  States  and  of  the  national  Government  in  respect  to 

naturalization  of  foreign  aliens,  ....  450 

392.  Powers  of  the  States  in  respect  to  naturalization  of  domestic  aliens,  451 

393.  Basal  questions  in  determining  the  relations  of  foreign  aliens,         .  451 

394.  Basal  questions  in  determining  the  relations  of  domestic  aliens,  451 

395.  Public  and  private  character  of  international  law  comprehended  in 

the  national  law,  ......     452 

396.  Of  that  international  law  which  is  derived  from  the  several  ^jurid- 

ical  powers  of  the  States,  .....     452 

397.  International  law  in  the  Territories  regarded  as  jurisdictions,  having 

a  local  law,  .......     453 

Classification  of  the  lazes  of  the  United  States  with  reference  to 
these  incidents. 

398.  Reasons  for  not  first  distinguishing  those  laws  as  either  national  or 

local, 454 

399.  First  distinction  of  those  laws  as  either  internal  or  international,       455 

400.  Internal  law  divided  into  national  and  local  internal  law,    .  .     455 


CONTENTS.  XXXV 

SEC.  PAGK 

401.  International  law  divided  into  domestic  international  la^v  and  for- 

eign international  law,    ......  455 

402.  Domestic  international  law  subdivided,  .  .  .  456 

403.  Foreign  international  law  subdivided,  ....  456 

404.  Personal  status  to  be  considered  as  an  effect  of  these  divisions  of 

the  law,  .......     457 


CHAPTER  XIV. 

THE  NATIONAL    MUNICIPAL  (iNTERNAT.)    LAW  OF  THE  UNITED  STATES ITS 

EFFECT  UPON  CONDITIONS  OF  FREEDOM  AND  ITS  0PP0SITE3. 

Of  the  Constitution  as  a  legislative  determination  of  the  riglits  of 
private  persons. 

405.  National  municipal  law  to  be  considered  as  affecting  individual 

rights  and  legal  capacity,  .....     458 

406.  Reference  to  the  distinction  between  legal  persons  and  legal  things,     458 

407.  Power  over  personal  liberty  may  have  been  disclaimed  by  the 

ultimate  sovereign,  ......     459 

408.  Effect  of  a  universal  attribution  of  any  rights  in  the  Constitution,     401 

409.  Of  limitations  on  the  powers  of  the  Government   as   securing 

rights  of  private  persons,  .....     462 

410.  Enumeration  of  such  limitations  in  the  Constitution  on  the  powers 

of  the  national  Government,      .....     462 

411.  Of  limitations  on  the  powers  reserved  to  the  States,     .  .  464 

412.  Of  the  character  of  the  Constitution  as  a  bill  of  rights,     .  .     464 

Consequences  from  the  recogn  ition  of  the  j^veexisting  constituent  people. 

413.  Rights  which  must  be  attributed  to  the  individuals  composing  that 

people,     ........     465 

414.  The  individual  members  are  known  by  the  then  existing  laws  of 

personal  condition,  ......     466 

415.  The  private  law  of  the  colonies  was  not  abrogated  by  the  Revolu- 

tion,        .  .  .  .  .  .  .  .467 

416.  The  Declaration  of  Independence  was  not  intended  to  operate  as 

private  law,         .......     467 

417.  The  Congress  declaring  it  had  no  powers  in  respect  to  personal 

condition,  .......     469 

418.  No  such  effect  has  been  judicially  ascribed  to  such  national  decla- 

rations of  right,  ......     471 

419.  There  is  no  national  abnegation  of  power  to  limit  personal  liberty,    471 


XXXVl  CONTENTS. 


Of  liberty  as  the  general  object  of  the  pitblie  law  contained  in  the 
Constitution. 

SEC.  PAGK 

420.  Liberty  as  secured  by  the  Constitution  is  definable  only  by  refer- 

ence to  customary  law,  .....     472 

421.  How  far  provisions  in  the  Constitution  restrict  the  States  in  their 

powers,  .......     473 

422.  Of  political  liberty  regarded  as  an  element  of  personal  condition,       473 

423.  Political  liberty  as  a  personal  right  is  not  determined  by  the  Con- 

stitution of  the  United  States,  ....     474 

424.  It  is  dotcrmincd  by  the  local  law  of  the  several  States,  .  475 

425.  The  Constitution  of  the  United  States  is  not  a  bill  of  rights  as 

against  the  States,  ......     47G 

Of  customary  or  common  laic  included  in  the  national  municipal  law. 

426.  Distribution  of  power  to  modify  the  effects  of  common  law,  includ- 

ing universal  jurisprudence,         .....     477 

427.  In   respect   to   territorial  extent   common   law  is  local   and   not 

national,  .......     478 

428.  But  common  law  is  incidental  to  the  exposition  of  the  written 

national  law,        .......     479 

429.  Rules  of  common  law  oiigin  may  have  national  extent  as  personal 

laws,        .  .  .  .  .  .  .  .480 

430.  In  applying  natural  reason  the  national  power  is  limited  to  speci- 

fied relations,       .......     481 

431.  Common   law,   including   universal  jurisprudence  and   Christian 

morals,  is  alterable  by  the  States,  ....    482 

432.  Common  law  in  the  Territories  is  a  local  law,     .  .  .  482 

Constitutional  location  of  power  over  personal  condition. 

433.  The  determination  of  personal  condition  is  not  included  under  the 

national  branch  of  powers,  .....     483 

/  434.  The  States  are  not  restricted  in  determining  status  under  their  in- 
ternal law,  .......     483 

435.  The  States  determine  the  status  of  persons  in  respect  to  the  action 

of  the  national  Government.      .....     484 

43G.  The  distribution  of  power  over  status  is  not  the  same  as  during 

the  colonial  period,         ......    484 


CONTENTS.  XXXVn 


CHAPTER  XV. 

OF  TOE  NATIONAL  MUNICIPAL  LAW  OF  TITE  TTNITED  STATES — THE  SUK.JECT 
CONTINUED — OF  THE  TERSONS  WHO  MAY  APPLY  THAT  LAW  BY  THE 
EXERCISE  OF  JUDICIAL  POWER. 

Of  the  exercise  of  judicial  potcer  by  the  national  Government  and 
the  States. 

.SEC.    ^  PAGE 

US^K  Where  the  functions  of  sovereignty  are  divided  the  judicial  is  the  ^ 

test  of  power,     .......     48G 

438.  Connection  of  private  condition  with  the  question  of  judicial  juris- 

diction, .  .  .  .  .  ,  .     48G 

439.  A  separate  judicial  power  follows  from  the  constitutional  distribu- 

tion of  sovereignty,         ......  487 

440.  Possibility  of  a  concurrent  exercise  of  the  judicial  power,         .  487 

441.  The  doctrine  belongs  to  local  as  well  as  to  national  law,      .  .  488 

442.  The  law  concurrently  applicable  may  be  that  which  is  quasi-'miQv- 

national,  .......     488 

443.  Presumption  that  the  national  law  is  also  applicable  by  State  tri- 

bunals, .  .  .  .  .  .  .     488    "^ 

444.  The  National  and  the  State  power  each  supreme  in  the  application 

of  its  own  law,  ......     489 

445.  Apparent  exception  in  State  laws  applied  by  national  jurisdiction 

over  persons,       .......     489 

National  law  applied  in  the  concurrent  jurisdiction  of  the  State  courts. 

446.  Admitted  supremacy  of  the  national  judiciary  in  application  of 

national  law,        .......     491 

447.  Where  national  and  State  judicial  power  may  concurrently  support 

the  same  rule,     .......     491 

448.  Illustration  in  civil  and  criminal  jurisdiction,     .  .  .  493 

449.  Where  individual  rights  are  in  controversy  the  judicial  power  of  the 

States  is  concurrent,       ......  494 

450.  This  doctrine  supported  bj' judicial  decision,      .  .  .  494 

451.  A  principle  of  universal  law  supporting  the  jurisdiction  in  all  cases,  49G 

452.  Statement  and  application  of  the  principle  in  the  Federalist,  .  497 

453.  Jurisdiction  undisputed  in  cases  originally  within  the  State  power,  498  ^ 

454.  Question  of  concurrent  judicial  power  distinct  from  that  of  concur- 

rent legislative,  ......     498 

Of  restrictions  on  the  concurrent  judicial  power. 

455.  The   States   may  limit  the  application  of  their  several  judicial 

power,  .......     499 


XXXVlll  CONTENTS. 

SBC.  TAOB 

456.  The  jurisdiction  can  bo  exercised  only  by  courts  of  ordinary  or 

common  law  jurisdiction,  .  .  .        '     .  .     500 

457.  Jurisdiction  is  to  the  tribunals  matter  of  duty,  if  of  power,     .  501 

458.  The  national  rule  when  applied  by  State  power  is  local  in  territo- 

rial extent,  .......     502 

459.  The  State  judicial  function  is  here  subordinate  to  the  national,  503 

Of  the  persons  in  whom  national  judicial  power  may  le  rested. 

460.  The  national  judicial  power  cannot  be  vested  in  the  judicial  officers 

of  a  State,  .  .  .  .  .  .  .503 

461.  Constitutional  provisions  for  tlie  investitureof  the  judicial  power  of 

the  United  States,  .  .  •  .  .  .504 

462.  Distinction  of  the  administrative  and  the  judicial  application  of 

national  law,       .......     505 

463.  Judicial  power  and  ancillary  ministerial  power,  how  distinguishable,     506 

404.  How  judicial  action  may  be  discriminated,  .  ,  .     507 

405.  Office  of  Commissioners  of  United  States  courts  and  of  State  Jus- 

tices of  the  Peace,  ......     508 

400.  Of  portions  of  national  law  not  applicable  by  judicial  tribunals,  508 

467.  The  exterior  application  of  international  law  is  not  within  the  ju- 

dicial power,        ......  509 

CHAPTER  XVI. 

THE  LOCAL  MTTNICIPAL  LAWS  OF  THE  UNITED  STATES  AFFECTING  CONDI- 
TIONS OF  FBEEDOM  AND  ITS  C0NTEAEIE8,  CONSIDERED  IN  CONNECTION 
WITH  PRINCIPLES  OF  PUBLIC  AND  PRIVATE  LAW  WHICn  DAVE  BEEN 
STATED  IN  PREVIOUS  CHAPTERS. 

Political  existence  of  the  people  of  the  several  States. 

468.  Of  the  territorial  limits  of  the  States,  .  .  .  ,511 
/  469,  The  corporate  existence  of  the  political  people  of  a  State  is  extrin- 
sic of  any  law,                 .             .             .             .             .  .511 

^     /470.  Their  possession  of  sovereignty  is  a  fact  above  the  national  Con- 
stitution, not  under  it,     .  ,  .  .  .  .512 

471,  The  individual  constituents  of  the  people  of  the  State  are  desig- 
nated by  a  law,  .......     513 

472,  The  political  people  of  the  States  identified  with  the  people  of  the 
colonies,  .  .  .  .  .  .  .513 

Of  liberty  in  its  relation  to  the  State  sovereignty. 

473,  Political  liberty  in  the  States,  regarded  as  a  private  right,  depends 
altogether  on  State  law,  .  .  .  .  .     514 


/ 


CONTENTS.  XXXrS 

tEC  page: 

x4f4.  State  Constitutions,  like  that  of  the  United  States,  are  both  evi- 
dence of  sovcieipnty  and  a  rule  of  action,  .  .  .514 

475.  Presumption  that  the  existing  State  Governments  are  republican,       515 

476.  Civil  liberty  in  each  of  the  States  may  have  a  constitutional  basis,     515 

Conditions  of  the  tenure  of  j)otcer  hy  State  Governments. 

477.  Powers  of  the  States  are  residuary  in  respect  to  those  held  by  the 

national  Government,     ......     515 

478.  Question  of  a  limitation  of  the  residuary  power  held  by  the  people 

of  each  State.      .......     516 

479.  Constituted  governments  cannot  be  possessed  of  unlimited  sove- 

reignty, .  .  .  .  .  .  .518 

480.  Distinction  of  the  early  State  Governments  as  restricted  or  not  by 

written  constitutions,      ......     518 

481.  Of  common  law  restraining  a  State  Government  in  the  absence 

of  written  constitutions,  .....     519 

482.  Customar}'  law  referred  to  in  the  construction  of  written  consti- 

tutions,   .  .  .  .  .  .  .  .520 

483.  Similarity  of  this  inquiry  to  that  of  the  extent  of  the  power  of 

parliament,  .......     521 

484.  Continuation  of  the  customary  distinction  of  two  systems  of  per- 

sonal laws,  .......     522 

485.  Restraint  on  State  power  by  international  provisions  in  the  Arti- 

cles of  Confederation,     ......     522 

486.  State  power  over  personal  condition  has  not  been  increased  since 

the  Confederation,  ......     523 

487.  Except  as  restrained  by  quasi-miGvaSiixondl  provisions,  personal 

status  depends  on  State  power,  ....     523 

488.  The  power  of  the  national  Government  in  the  Territories,  &c.,  is 

like  that  of  a  State  Government,  ....     525 

Of  power  held  ly  the  local  Qovernments  to  determine  personal  status. 

489.  Of  constitutions  operating  as  a  local  bill  of  rights,  .  .  525 

490.  Proposed  method  of  inquiry,      .....  525 

491.  Supposed  sanction  for  legislation  reducing  free  blacks  to  slavery,  .  527 

492.  The  guarantee  of  private  property  as  extending  to  rights  in  respect 

to  slaves,  as  property,     ......     527 

Judicial  opinions  on  this  point  in  Dred  Scott  v.  Sandford. 

493.  Opinion  of  the  Court  delivered  by  Chief  Justice  Taney,  .  .     528 

494.  Opinions  of  Justices  "Wayne  and  Grier,              .             .  .  531 

495.  Views  taken  by  Justices  Daniel  and  Campbell,        .  .  .     531 

496.  Mr.  Justice  Daniel's  opinion,      .            .            .            .  .531 


xl  CONTENTS. 

SEC.  PACK 

497.  Mr.  Justice  Campbell's  opinion,        .....  534 

498.  Mr.  Justice  Catron's  opinion,  ....  539 

499.  Views  taken  by  Justices  McLean  and  Curtis,  .  .  .  541 

500.  Mr.  Justice  McLean's  opinion,  ....  542 

501.  Mr.  Justice  Curtis'  opinion,  .....  546 

Doctrines  of  the  equality  of  the  States  in  respect  to  the  territory  of 
the  United  States. 

502.  Of  the  doctrine  as  a  principle  of  law,  ....  554 

503.  Of  the  doctrine  as  a  political  principle,  .  .  .  554 

504.  View  taken  by  Mr.  Cullioun  and  others,      ....  555 

505.  Comparison  of  the  views  of  the  majority  of  the  court  on  this  point, 

in  Dred  Scott's  case,       ......     556 

Argument  that  the  legislative  power  is  not  thus  restricted. 

50G.  That,  in  this  case,  no  principle  for  denying  the  power  was  support- 
ed by  a  majority  of  the  court,    .....     558 

507.  Fallacy  in  the  doctrine  that  in  the  Constitution  slaves  are  referred 

to  as  property  by  local  law,        .....     5G0 

508.  Fallacy  in  the  doctrine  that  by  its  operation  slaves  are  property 

under  national  law,  ......     561 

509.  The  doctrine  of  property  in  slaves  as  set  forth  in  Chief  Justice 

Taney's  opinion,  ......     561 

510.  Of  the  support  of  the  power  by  its  former  customary  exercise,  5G2 

511.  Of  the  rejection  by  the  Chief  Justice,  in  this  question,  of  the  laws 

and  usages  of  nations,     ......     563 

512.  Necessity  of  a  customary  standard  of  property,  .  .  564 

513.  The  customary  standard  must  be  identified  with  the  national  juris- 

prudence, .......  5G5 

514.  The  standard  is  found  in  the  customary  law  of  all  civilized  nations,  566 

515.  Or  in  the  universal  jurisprudence  of  all  juridical  nations,  .  .  5G7 

516.  "Which  was  part  of  the  .\mcrican  law  having  national  extent  and 

^i/rt.sMnternational  elTect,  .....     508 

517.  Property  in  human  beings  is  not  now  known  by  universal  juris- 

prudence, .  .  .  .  .  .  .568 

518.  Distinction  of  a  universal  jurisprudence  peculiar   to  the  United 

States,     .  .  .  .  .  .  .'  .     569 

519.  Historical  proof  that  such  law  is  not  the  foundation  of  slavery,         569 

//'/  Slavery  in  the  United  States  does  not  rest  on  a  national  common  law. 

520.  That  slavery  rests  on  national  common  law  is  implied  in  Chief 

Justice  Taney's  opinion,  .....     570 

521.  Senator  Benjamin's  assertion  of  the  doctrine  in  the  Kansas  debate,    571 


CONTENTS.  Xli 

SKC.  '  PACK 

&*«^22.  Historical  proof  that  slavery  rests  on  local  common  law,     ,             .  573 

523.  The  question  of  the  lawfulness  of  slavery  in  the  Territories  is  one 

of  international  private  law,       .....  574 

Of  confuaion  arising  from  deficiency  of  terms. 

524.  Ambiguous  use  of  the  term  positive  law,     ....  575 

525.  Use  of  terms  by  Justice  Ilolroyd,  in  an  English  case,  and  by  Chief 

Justice  Shaw,     .......  577 

526.  The  failure  to  recognize  natural   reason  in  the  historical  law  of 

nations,                .......  579 

527.  Illustrated  by  Chief  Justice  Shaw  in  Commonwealth  v.  Aves,  579 

528.  Illustrated  in  an  extract  from  Senator  Benjamin's  speech,    .             .  581 

529.  And  in  his  reply  to  Senator  CoUamer,    ....  584 

530.  Of  Lord  Stowell  and  Judge  Story  as  cited  by  Senator  Benjamin,  586 


./iai. 


Theories  of  the  power  of  the  national  Government  in  the  Territories. 

The  three  functions  of  sovereignty  are  necessarily  combined  in  the 

manifestation  of  juridical  power,  ....     588 

532.  Conditions  of  the  exercise  of  executive  and  judicial  power  in  the 

Territories,  .......     589 

533.  Inconsistency  in  denying  the  legislative  power  in  Congress,       .  591 

534.  The  idea  that  the  national  Government  may  remain  neutral  in  re- 

spect to  slavery,  .  .  .  .  .  .592 

535.  Variance  of  Judge  Campbell's  theory  with  the  local  character  of 

State  law,  .  .  .  .  .  •  .594 

536.  Inconsistency  of  the  conclusion  with  the  doctrine  to  which  it  is 

attributed,  .  .  .  .  .  •  .595 

Of  the  further  exposition  of  the  local  municipal  laic. 

537.  Proposed  abstract  of  local  legislation,  ....     596 

538.  Distinction  of  State  laws  as  ^aving  universal  personal  extent,  596 

539.  Limitation  of  the  view  herealier  to  be  taken  of  liberty  and  slavery,     597 


INDEX    OF  CASES 


THE     REFERENCE     IS     TO     THE     PAGE 


Albany  Fire  Ins.  Co.  v.  Bay,  4  Comstock,  1, 133 

Alfred  v.  Marquis  of  Fitzjames,  3  Espinasse,  3,  ....         380 

Almeida,  case  of,  12  Niles' Weekly  Reg.,  115,  213, .         .         .      495,504,508 
American  and  Ocean  Ins.  Cos.  v.  Canter,  1  Peters,  511,      .         .         .         453 

Anonymous,  2  Peere  Williams,  75, 115 

Attorney  General  V.  Stewart,  2  Merivale,  143,  .         .        .         110,117 


B 

Bank  of  Augusta  v.  Earle,  13  Peters,  519, 

Bank  of  the  United  States  v.  Norton,  3  Marshall's  Ky..  422, 

Beaumont  v.  Barrett,  1  Moore's  Cases,  P.  C,  75, 

Belt,  case  of,  7  N.  Y.  Legal  Obs.,  80, 

Betty  V.  Ilorton,  5  Ijcigh,  015, 

Blankard  v.  Galdy,  4  Mod.,  215,  and  Salkeld,  411, 

Bloom  V.  Burdick,  1  Hill,  130,        .... 

Bodley  v.  Gaither,  3  Munroe,  Ky.,  57, 

Bonham's  Case,  8  Coke.  118, 

Booth  and  By  craft,  cases  of,  3  Wisconsin,  1, 

Boucaut,  case  of  the  negro,  15  Causes  Celebres, 

Braddee  v.  Brownfield,  2  Watts  and  Serg.,  275, 

Bra3-nard  v.  Marshall,  8  Pickering,  194, 

Buckner  v.  Finley,  2  Peters,  580, 

Buckwalter  v.  the  United  States.  11  Serg.  and  Rawie 

Butler  V.  Craig,  2  Harris  &  McHcnry,  214, 

Butt  V.  Rachel,  4  Munford,  209, 

Butts  V.  Penny,  2  Levinz,  201,  and  3  Keble,  785, 


193 


•      74 

430 
.     IIG 

495 

.     526 

115.  110,  200 

.  '     .501 

430 

.     127 

495,  502 

.     341 

520 
.    430 

144 
.    497 

249 
.     236 

179 


INDEX   OF    CASES. 


xliii 


0 

Calder  v.  Bull,  3  Dallas,  386, 

Calvin's  case,  17  Coke.  7,  .... 

Campbell  v.  Hall,  Cowpcr,  204, 

Campbell  v.  Claudius,  Peters'  C.  C.  R.,  484, 

Carpenter  v.  Providence  Ins.  Co.,  IG  Peters,  495, 

Carlton,  case  of,  7  Cowen,  471, 

Chambers  v.  Warkhouse,  3  Levinz,  33G,     . 

Chamberlayne  v.  Harvey,  1  Ld.  Raymond,  147,  Carthew 

Mod.  187,         ..... 
Chinn  v.  Respass,  1  Munroe,  Ky.,  25,     . 
Chisholm  v.  Georgia,  2  Dallas,  419,     . 
City  of  London  v.  AVood,  12  jNIodern,  088,     . 
Clark,  case  of  Mary,  1  Blackford,  Ind.,  122, 
Cochran  v.  Van  Surla}'^,  20  Wendell.  3G5, 
Cohens  v.  Virginia,  6  Whcaton,  2G4, 
Collctt  v.  Keith,  2  East,  2G0, 
Collins  V.  Blantire,  2  Wilson,  351, 
Commonwealth  v.  Alger,  7  Cushing,  53, 

"  "        Aves,  18  Pickering,  193, 

"  '=         Cushing,  11  Mass.,  G7, 

'•  "        Feely,  Virginia  Cases,  321, 

«  "        Fox,  7  Barr's  Pa.  R.,  336, 

"  "        Fuller,  8  Metcalf,  313,     . 

"  "         Harrison,  11  Mass.,  63, 

'•  "         IloUoway,  5  Binney,  512, 

"  "         Ilolloway,  2  Serg.  and  Rawle,  305 

"  "        Leach,  1  iMass.,  59. 

"  "         Lewis,  G  Binney,  2GG, 

"  "         Murray,  4  Binney,  487,  . 

Corporation  of  New  Orleans  v.  Winter,  1  Wheaton,  91, 
Coventry  v.  Woodall,  llobart,  134, 
Craw  V.  Ramsey,  Vaughan,  292,     . 


.     13,  140,  519 

115,  IIG,  118,  160 

115,  196 

.     490 

491 

.     495 

180 


39G, 


and 


181,  379 
243,  359 
408 
.     127 
139 
.    520 
431,  493 
.     116 
27 
.     127 
258,  576-579 
.     495 
497 
.     495 
493 
.     495 
495 
.     495 
133 
.    430 
495 
.    433 
218 
.     116 


D 


520 

208 

71 

127 


Dash  V.  Van  Klecck,  7  Johnson,  477, 

Davis  V.  Curry,  2  Bibb,  238, 

Dawson,  ex  parte,  3  Bradford,  130, 

Day  V.  Savage,  llobart,  87, 

Dred  Scott  v.  Sandford,  19  Howard,  393,        .      204,  207,  214,  321,  334,  338, 

340,  342,  358,  373,  40G,  408,  409,412,  435-437,  440-463,  471,490, 

491,  517,  528-558,  589. 
Dutton  V.  Howell,  Shower's  Pari.  Cases,  24, 116 


xliv  INDEX    OF    CASES. 

E 

Eells  V.  The  People,  4  Scammon,  498,     ....                 .        .  492 

Elmendorfv.  Taylor.  10  Whcaton,  152, 490 

Ely  V.  Peck,  7  Connecticut,  239. 497 

Erskine  v.  Murray,  2  Ld.  Raymond,  1542. 88 

Eubank  v.  Poston,  5  Munroe,  Ky..  285,          .        .                 ...  430 


Ferguson,  case  of,  9  Johnson,  239,  .         .  .         .     495 

Fletcher  t.  Peck,  G  Cranch,  87,  ...  .        .        519 

Foot  V.  Stevens,  17  Wendell,  483,  501 

Forbes  v.  Cochran,  2  Barnw.  and  Cress,  448,       .        .110,  198,  216,  377,  576 

Foster  and  others  v.  Neilson,  2  Peters.  254, 433 

Fox  V.  the  State  of  Ohio,  5  Howard,  410,  ....         492,  493 

Francisque,  case  of  negro,  Denisart's  Decisions  Nouvelles,     .        .        .     344 

G 

Gelly  V.  Cleve,  1  Ld.  Raymond.  147, 181 

GifFord  V.  Yarborough.  5  Bingham,  107, 29 

Gloucester  Ins.  Co.  v.  Younger,  2  Curtis  C.  C.  R.,  322,  .         .         .491 

Goshen  v.  Stonington,  4  Connecticut,  209, 520 

Grace,  case  of  the  slave,  2  Haggard's  Adin.,  94,      .      194,  208,  370,  385,  570, 

580,  588 

Grantham,  case  of  Sir  Thomas,  3  Modern,  120, 331 

Groves  v.  Slaughter,  15  Petens,  449, 490,  538,  561 

H 

Haggin  v.  Sq'uiers,  2  Bibb,  334, 433 

Harvey  v.  Thomas,  10  Watts,  03, 520 

Harvey  and  others  v.  Decker  and  Hopkins,  18  "Walker's  Mississippi,  30,    414 

Heathfield  v.  Chilton,  3  Burroughs,  2015, 140 

Ileilbonn,  case  of,  1  Parker's  Crim.,  429, 495 

Hempsted  v.  Reed,  0  Connecticut,  480, 430 

Hepburn  v.  Elzey,  2  Cranch,  445, 433 

Hobbs  V.  Fogg,  0  Watts,  553, 208 

Hoke  V.  Henderson,  3  Devereux,  N.  C,  12, 404 

Holden  v.  Smallbrooke,  Vaughan,  187, ^j  14 

Houston  V.  Moore,  5  Whcaton,  1,       .        .        .        .  492,  493,  490,  497,  499 
Hudgins  v.  Wrights,  1  lien,  and  Munford,  134,      ....      230,  240 


Jack  V.  Martin,  12  Wendell,  311,  and  14  Wendell,  507,      .         .         495,  499 
Jackson  v.  Bullock,  12  Connecticut,  38,  ....      273,  492,  493 


INDEX   OF    CASES. 


xlv 


Jackson,  Lessee  of,  v.  Burns,  3  Binney,  74, 430 

James  v.  Lcchmere,  Washburn's  jjaper  before  Mass.  Hist.  Soc,      .         .  204 

Jenkins,  case  of,  2  Wallace,  jr.,  521, 495 

Jones  V.  Perry,  10  Yerger,  59, 404 

Jones  and  others  v.  Reed,  1  Johnson's  Cases,  20,  1  Caines,  594,  note,  501 


Kempe,  Lessee  of,  v.  Kennedy,  5  Cranch,  174, 

Kirk,  case  of  George,  4  N.  Y.  Legal  Obs.,  450,   , 

Knight  against  Wedderburne,  33  Morrison's  Diet.  Decisions, 


501 
495 


Livingston,  Lessee  of,  v.  Moore.  7  Peters,  409, 
Lockington,  case  of,  5  Hall's  Am.  Law  Journal,  92, 
Lonsdale  v.  Brown,  4  AVash.  C.  C.  R.,  148,     . 
Louis,  the,  2  Dodson's  Adm.,  210, 
Lunsford  v.  Coquillon.  14  Martin,  La.,  401,    . 
Luther  v.  Borden,  7  Howard,  1,         .         .         . 


M 


404,  486,  500 

495 

.     444 

0 

.     570 

390,  410,  413 


Martin  v.  Hunter's  Lessee,  1  Wheaton,  304,     .     431,  491,  492.  493,  497,  498, 

503,  504 
Mary  v.  the  Yestry  of  Wm.  and  Mary  Par.,  3  Harris,  and  McHenry, 

501, 170 

Mattison  v.  the  State,  3  Missouri,  421, 503 

Mayer  v.  Foulkrod,  4  Wash.  C.  C.  R.,  349, 490 

jMcCulloch  V.  Maryland,  4  Wheaton,  310,  400 

]\lcllvaine  v.  Coxe's  Lessee,  4  Cranch,  209, 408,  409 

Metzger,  case  of,  1  Barbour.  248, 495 

Moore  v.  State  of  Illinois,  14  Howard,  13, 492 

Mostyn  V.  Fabrigas,  Cooper,  101, 115,116 

Murray  v.  Fitzpatrick,  3  Caines  R.,  30, 501 


Neal  V.  Farmer,  9  Georgia,  555, 


N 

14,  32,  137,  154,  105,  172,  188,  207,  212, 
220,  311,  577 
0 


Oliver  v.  Weakley,  1  Am.  Law  Register, 

P 


194 


Pallas  and  others  v.  Hill  and  others,  2  Hen.  and  Munford,  149,  .         230 

Pearne  v.  Lisle,  Ambler,  75, 185 

Potter  V.  Brown,  5  East  124,      .         . 08 

Prigg  V.  Pennsylvania,  10  Peters,  539,    .     (^02,  499,  500,  501,  502,  501,  57^^^- 


xlvi 


INDEX    OF    CASES. 


R 


Rankin  v.  Lydia,  2  Marshall,  Ky.,  4G7, 
Randolph,  case  of,  2  Brockenborough,  447, 
Respublica  v,  Cobbct,  3  Dallas,  407, 

"         "         Dc  Longchamps,  1  Dallas,  111,       . 
Rex  v.  Brampton,  10  East,  281,      . 

"       Picton,  30  Howell's  State  Tr.,  225, 

'•       Vaughan,  4  Burrow,  2704, 
Roberts,  case  of,  2  Hall's  Am.  Law  Journal,  192, 
Rhodes,  ex  parte,  12  Niles'  Weekly  Reg.,  264, 
Robinson  v.  Bland,  2  Burrow,  1077, 

"         •'       Campbell,  3  Wheaton,  212, 
Rowan  v.  Runnells,  5  Howard,  134,   . 


576 

506 

432 

88 

119 

115 

116 

495 

495 

111 

482 

491 

Saul  T.  His  Creditors,  17  Martin's  La.,  569,    . 

Schooner  Exchange  v.  McFaddon,  7  Cranch,  116, 

Scott,  (the  negro  Drcd,)  v.  Emerson,  15  Missouri,  576, 

Scrimshire  v.  Scrimshire,  2  Hagg.  Consis..  395,  . 

Sergeant,  ex  j^arte,  8  Hall's  Law  Journal,  206, 

Seton  V.  Hanham,  R.  M.  Charlton,  374,      .         .         .         . 

Seville  v.  Chretien,  5  Martin's  La.,  275, 

Shanley  v.  Harvey,  2  Eden,  126, 

Sheddan  against  a  Negro,  33  Morrison's  Diet.  Decisions, 
Sims,  case  of,  7  Cushing.  285,         ....  32, 

Smith  V.  Brown  and  Cooper,  Salkeld,  606,  and  Holt,  495,  . 
Smith  V.  Gould,  Salkeld,  666,  and  2  Ld.  Raymond,  1274,  . 
Somerset,  case  of,  Lofft,  1,  and  20  Howell's  St.  Trials,  1, 


Stacj^  case  of,  10  Johnson,  328, 

State  V.  Bowcn.  3  Strobhart,  573,  . 

•'  Hale,  2  Hawks,  582,       .... 

«  Hunt,  2  Hill,  S.  C,  1,        .        .        . 

"  Mann,  2  Devereux,  263, 

"  Manuel,  4  Devereux,  and  Battle,  23, 

"  ^IcGee,  1  Bay.  306,         .... 

«  Randall,  2  Aikens,  89,         .         .         . 

"  Fleming,  2  Strobhart,  464,      . 

"  Post,  1  Spencer,  368,  and  Zabriskie,  699, 

"  Reed,  2  Hawks,  454, 

«  Tutt,  2  Bailey,  44,     . 

"  Welch,  1  Bay,  172,         .... 

"  Tan  Beuren,  1  Spencer,  3S8, 


.   63 
9 

.  490 

88 

.  495 

433 

212 

586,  587 

.  332 

313,  408,  495.  501 

116,  118,  182,  359 

116,  184 

27,  43,  136, 

189,  358,  576 

495 

.  307 

226,  296 

.  408 

296 

.   50 

306 

.  493 

306 

.  285 

296 

.  493 

307 

.  285 


INDEX  or  CASES.  xlvii 

Steamboat  Comp.  v.  Livingston,  3  Cowcn,  713,  ....  499 

Stradcr  v.  Graham,  10  Howard,  82, 490 

Stiirgis  V.  Crowninshicld,  4  Wheaton,  122, 499 

Sturgis  V.  Davis,  1  Paine  and  Duer's  Piact.,  12, 433 

Swift  V.  Tyson,  16  Peters,  1, 491 

T 

Talbot  V.  Jansen,  3  Dallas,  133, 408 

Tanistry,  le  case  de,  Davis,  28, 28,  116 

Tate  v.  O'Neal.  1  Hawks.  418, 296 

Taylor  v.  Porter,  4  Hill,  N.  Y.,  140, 464 

Teal  V.  Felton,  12  Howard,  284, 492,  493 

Triquct  v.  Bath,  3  Burrows,  1478, 88,  140 

U 

United  States  v.  Dodge,  14  Johnson,  95, 497 

'=  "  Campbell,  6  Hall's  Am.  Law  Journal,  113,        .         .  497 

«  "  Lathrop.  17  Johnson,  4, 497 

«  "  Peters,  5  Cranch,  115, 496 

"  «  Smith,  5  Wheaton,  153, 393 

"  "  Wonson,  1  Gallison,  5, 490 

W 

Warder  v.  Arrel,  2  Washington,  1,  Va.,  282, 444 

Ware's  Administrator  v.  Hylton,  3  Dallas,  1991,         .         .         .  408,  469 

Ward  v.  Jenkins,  8  Law  Reporter,  538, 500 

Ward  v.  Mann.  9  Law  Reporter,  493, 501 

Watson  V.  Tarpley,  18  Howard,  517, 491 

Wells  V.  Newkirk,  1  Johnson's  Cases,  228, 501 

Wheaton  and  others  v.  Peters  and  others,  8  Peters,  591,         .         .      133,  567 
Winchendon  v.  Hatfield,  4  Mass.,  123,    ....       263,  264,  359,  526 

White  V.  Chamber.-;,  2  Bay,  70, 306 

Wilkinson  v.  Leland,  2  Peters,  627, 519,  520 

Wright  V.  Deacon,  5  Serg.  and  Rawle,  62, 495 

Wynehamer  v.  People,  3  Kernan,  378, 519,  520,  565 

Wytham  v.  Dutton.  3  Modern,  160, 116 


Yates  v.  Lansing.  9  Johnson.  395, 501,  527 


CORRECTIONS. 


Page  30,  note,  line  3  from  hottom,  for  "  the  result  either,"  read,  "  either  the  result." 

Page  75,  line  14  from  top,  for  "The  motives  for  that  practice  are  immaterial,"  read, 
"  The  motives  which  may  have  actxiated  the  State,  in  this,  are  immaterial." 

Page  119,  note  1,  line  3, /or  "  18  East,"  read,  "  10  East." 

Page  133,  note  1,/or  "  1  Comstock,"  read,  "  4  Comstock." 

Page  158,  note  2,  line  6,  for  "  Novell  162,  c.  3,"  read,  "  Novell.  156." 

Page  180,  line  5  from  hottom,  after  "  Warkhouse,"  insert,  "  3  Levinz,  336." 

Page  211,  line  6  from  top,ybr  "  captived,"  read,  "haptized." 

Page  211,  line  5  from  bottom,  for  "  ventre,'"  read,  "  ventre." 

Page  221,  note  1,  line  1,  afler  "  Swedish,"  insert,  "  or  Danish." 

Page  228,  line  5  from  bottom  of  the  text,  for  "further,"  read,  "  fuller." 

Page  230,  line  19  from  top, /or  "  1559,"  read,  "  1659." 

Page  265,  note  1,  line  3,  for  "  restructed,"  read,  "restricted." 

Page  285,  note  1,  for  "  1  Zabriskie's  R.,  368,  378,"  read,  "  1  Spencer,  368,  and  State 
V.  Post,  1  Zabriskie,  699." 

Page  329,  line  13  from  top,  ybr  "  laws.     No  laws,"  read,  "  laws,  no  laws." 

Page  344,  line  7  from  top,  for  "  Code  Noir,"  read,  "  Edict  of  Louis  XV." 

Page  349,  line  12  from  top,  insert  "the,"  before  "  question." 

Page  362,  for  the  numbers  of  the  notes,  "  3,  4,"  read,  "  1,  2." 

Page  369,  in  the  note,  dele  59,  after  R. 

Page  377,  line  18  from  top, ybr  "primitive,"  read,  "punitive." 

Page  381,  note  2,  line  12,  for  "cusa,"  read,  "  casu." 

Page  382,  note  2,  line  5,  for  "  aportet,"  read,  "  oportet." 

Page  447,  Hue  9  from  bottom,  ybr  "  nature,"  read,  "  name." 

Page  486,  note  1,  line  2,  for  "  1  Peters,"  read,  "  7  Peters." 

Page  493,  note  1,  line  5,  for  "  Tuff,"  read,  "  Tutt." 

Pages  494,  495,  for  "concurrknt,"  in  the  running  title,  read,  "  contested." 

Page  495,  note  3,  for  "92,  313;  5  of  same,  301,  330,"  read,  "92-103,  301-330." 

Page  496,  hne  1,  for  "  two,"  read,  "  fom\" 

Page  501,  note  1,  line  9,  after  "  Fitzpatrick,"  insert,  "  3  Caines,  36,  and  Foot  v.  Ste- 
vens." 

Page  505,  last  line  in  note,  for  "  See  note,"  read,  "  (2)  See  note  1." 

Page  520,  line  18  of  note,  for  "  Bramfield,"  read,  "  Brownfield." 


THE    LAW 


FREEDOM     AND     BONDAGE. 


CHAPTEE  I. 


LAW  DEFINED   AND   DIVIDED ITS   OBJECT,    OEIGEN,   EFFECT, 

AND   EXTENT. 

§  1.  The  word  law  has,  in  common  use,  two  leading  signifi-  f 
cations ;  one,  which  is  generally  considered  the  primary  sense 
— that  of  a  rule  of  action,  prescribed  by  a  superior  to  an  in-  , 
ferior ;  in  the  idea  of  which  the  possibility  of  action  contrary 
to  the  rule  is  implied :  the  other — a  meaning  sometimes  con- 
sidered secondary  to  that  first  given,  by  a  metaphorical  use  of 
the  word — that  of  a  mode  of  existence,  or  of  action,  excluding 
the  idea  of  the  possibility  of  action  contrary  to  that  mode  ; — a 
relation  necessary  in  the  nature  of  the  thing  existing  or  acting : 
whether  the  co-existence  of  a  superior  author  or  cause  of  that 
relation  be  supposed  or  not.* 

§  2.  Every  being,  existing  under  conditions  over  which  it 
has  no  control,  is  subject  to  law  in  the  secondary  sense ; — there-  ] 
fore,  called  the  law  of  its  nature.  The  nature  of  man,  or  the 
conditions  of  his  existence,  are  to  him  a  law  in  this  sense — the 
law  of  nature ;  and,  being  by  this  law  capable  of  choice  and 
action,  he  may  also  be  subject  to  law  in  the  primary  sense.' 

'  Brande's  Diet.,  Law.  Blackst.  Com.,  Introd.,  sec.  2,  note  by  Christian.  Austin:  , 
Province  of  Jurisp.,  pp.  19,  130,  184.  Montesq.  :  Spirit  of  L.,  ch.  L  ;  and  Do  Tracy's  i' 
Comment.     Reddie's  Inqniries  Elementary  &c.,  pp.  4, 16,  17. 

'   The  primary  and  secondary  tneamngi  of  the  term  law  must  not  be  confounded 

1 


I  LAW   OF   NATURE. 

■pie  idea  of  law  in  the  primary  sense  implies  the  relation  of 
superior  and  inferior  ;  and  the  elementary  principle  in  the  sci- 
ence of  law,  in  this  sense  of  the  word  law^  is  the  existence  of  the 
legislator  anterior  to  the  law.  AVhen  the  word  law  is  applied 
to  rules  of  action  for  man,  the  existence  of  such  a  legislator,  as 
to  man,  must  be  taken  for  a  fact,  or  relation,  independent  of  the 
rule  itself;  or  as  being  a  principle  of  the  law  of  nature,  in  the 
secondary  sense  of  the  word  law. ' 

§  3.  In  the  various  views  of  the  conditions  of  man's  exist- 
ence— that  is,  of  the  law  of  liis  nature  (law  in  the  secondary 
sense),  which  have  been  advanced  by  authors  who  have  pro- 
fessed to  treat  oi  jurisprudence^  or  the  science  of  law,  there 
have  been  two  theories  as  to  the  existence  of  this  legislator,  or 
the  source  of  law  in  the  primary  sense.  According  to  some 
authors,  the  first  principle  of  the  science  of  law  is,  that  man 
exists  in  society  organized  into  political  states,  and  that  the 
state  is  the  highest  source  of  law  as  a  7'ule  of  action.'  This 
principle  being  assumed  to  be  a  law  of  nature,  in  the  secondary 
sense  of  the  term,  and  the  law  of  nature,  in  this  sense,  being 
considered  as  the  only  law  of  nature  which  can,  in  any  system 
oi  juris2?rud€nce,  be  regarded  as  having  an  existence  independ- 
ent of  the  state.' 

According  to  others,  there  is  a  law  in  the  primary  sense,  an- 
terior to  the   legislation  of  the  state;    by  which  actions  are 

with  a  primary  and  secondary  law  ;  whether  so  called  in  reference  to  order  of  time 
or  of  authority.  Conditions  of  things  are  necessarily  presupposed  in  the  enunciation 
of  a  rule  of  action,  and  in  this  connection  the  former  may  be  called  the  primary  and 
the  latter  the  secondary  law.  Some  elementary  writers  speak  of  a  primary  and  secon- 
dary law  of  nature.  Their  primary  law  being  a  condition  of  things — a  law  in  the 
secondary  sense  :  e.  g.  Bowyer :  Univ.  Pub.  Law,  p.  20.  AylifiFe's  Pandects,  pp.  5,  6. 
Wood's  Civil  Law,  p.  92.     Domat :   Loix  Civ.  Traite  des  Loix,  ch.  L,  §  3. 

'  Keddie's  Inq.  Elem.  &c.,  p.  16-19. 

'  In  illustrating  the  assertion  of  this  doctrine,  writers  on  jurisprudence  usually  cite 
Cameades,  apud  Lactantium,  Lib.  v.,  c.  15;  and  Aristippus  and  Pyrrho,  apud  Diog. 
Laert.,  Lib.  ii.,  c.  8 :  see  Selden,  De  J.  Nat.  et  Gen.  juxta  Disc.  Eb.,  ch.  3 ;  Rutherf., 
B.  ii ,  c.  1  ;  Pufend.,  B.  ii.,  c.  3  ;  Grot.,  B.  ^t  P.  Prolog.  5.  But  these  are  only  early 
dogmatisms  on  one  side  of  a  never-ending  ethical  controversy  ;  of  which  more  syste- 
matic assertions  might  be  found  nearer  our  own  day.  It  is  not,  in  fact,  possible  to  cite 
any  system  of  jurisprudence  or  any  legislative  or  juridical  authority,  ancient  or  modem, 
heathen  or  Christian,  which  denies  the  pre-existence  of  natural  justice — the  jural  char- 
acter of  every  rule  which  is  a  rule  of  law  ;  unless  piratical  communities  and  robber 
feudal  barons  can  be  called  juridical  authority  when  denying  the  existence  of  any  law  : 
compare  Ligber  :  Pol.  Ethics,  vol.  L,  231. 

^  Spinoza :  Ethices,  Pars  iv.,  prop.  37,  schoL  2 :  Tract.  Politici,  cap.  ii. :  Tract. 
Theologico-Polit.,  cap.  xvi.  Hobbes  is  commonly  misrepresented  as  having  denied 
the  existence  of  natural  law  otherwise  than  in  this  sense. 


JURISPRUDENCE   DEFINED.  3 

enjoined,  allowed  or  proliibited,  independently  of  the  rule  pro- 
ceeding from  the  state,  and  under  which,  as  a  law  of  nature,  and 
a  law  in  the  primary  sense  also,  the  state  is  to  be  considered  as 
existing ;  which  law  is  to  be  recognized  in  jurisprudence  as  con- 
stantly binding  on  mankind/ 

§  4.  The  questions  of  the  existence  of  natural  law, — in  the 
primary  sense  of  the  word  law,  of  the  nature  of  its  injunctions, 
and  of  the  limits  of  the  power  of  the  state  as  a  source  of  rules 
of  action  for  mankind,  are  questions  regarding  the  nature  of 
man,  or  of  the  laiv  of  his  nature,  in  the  secondary  sense  of  the 
term  law :  they  are  questions  of  ethics, — the  science  of  liis  nature 
as  a  being  capable  of  choice  and  action  in  reference  to  a  rule 
which  it  is  possible  for  him  to  disobey ;  whether  they  are  deter- 
mined by  the  precepts  of  a  religious  creed,  taken  to  be  the  reve- 
lation of  a  divine  will,  or  by  the 'dictates  of  human  reason. 
Whether  they  also  belong  to  jurisprudence,  or  not,  is  merely  a 
question  of  definition  :  that  is,  depends  on  the  meaning  of  law, 
and  oi  jurisprudence  as  the  science  of  law.' 

§  5,  A  law  in  the  secondaiy  sense  is  spoken  of  as  something 
which  exists  absolutely  ;  which  necessarily  both  exists  and 
operates  ;  which  is  necessarily  enforced,  if  it  exists  at  all ;  such 
a  law  being  a  state  of  tilings.  But  a  law  in  the  primary  sense — 
a  rule  of  action,  may  be  supposed  to  exist  without  being  en- 
forced ;  or  without  operating  except  in  creating  a  moral  obliga- 
tion :  because  a  possibility  of  action  contrary  to  the  rule  is  im- 
plied in  the  idea  of  a  law  in  this  sense.  A  law  of  this  kind  may 
therefore  be  recognized  either  as  a  law  merely  existing,  or  as  a 
law  operating  or  being  enforced.  * 

Now,  jurisprudence  is  taken  to  be  the  science  of  a  rule  not 
merely  existing,  but  one  which  is  actually  operative  or  enforced 

'  Lieber  :  Pol.  Ethics,  B.  I.,  §  30.  Rutherford,  B.  ii.,  c.  2.  Mackintosh  :  Prog. 
Eth.  Phil.,  Sect  iv.  v.  :  Grotius :  B.  et  P.  Prolegom.,  §§  6,  7,  8,  16,  and  notes.  Vattel : 
c.  il,  §  1.  Aristot. :  Rhet.,  Lib.  i.,  cap.  13  et  15,  and  various  other  ancient  authorities 
cited  by  Selden,  De  J.  Nat.  &c.,  Ebr.  Lib.  i.,  ch.  vi.  Eeddie's  Inquiries  &c.,  p.  19 ; 
also,  ch.  ii.,  and  the  citations. 

A  very  recent  comparison  of  the  best  authors  on  this  point  in  Bowyer  on  Universal 
Public  Law,  ch.  ii.,  iii.,  iv.,  vii..  Vol.  84,  of  Philad.  Law  Library. 

'  Comp.,  Doctor  and  Student,  ch.  i.,  ii 

In  connection  with  the  subject  of  this  chapter,  there  will  be  frequent  occasion  to 
recall  the  maxim  of  lavolenus.  Dig.,  Lib.  L,  Tit.  17,  §  202.  Omnia  delinitio  in  jure 
civili  pericolosa  est,  parum  est  enim  ut  non  subverti  possit. 


4  SITBJECT   OF   JUEI8PKIIDENCE. 

in  or  by  the  will  of  society  or  the  state.  Tlie  science  of  what 
rule  ought  to  be  made  operative  by  the  will  of  the  state  is  a 
different  thing  ;  it  is  a  science  of  rules  regarded  only  as  existing, 
whether  operative  in  civil  society — that  is,  enforced — or  not,' 

A  rule  made  operative  by  the  authority  of  society,  or  of  the 
state,  is  a  rule  identified  with  the  expressed  will  of  society  or  of 
the  state.  Tlie  will  of  the  state,  indicated  in  some  form  of  ex- 
pression, is  the  law^  the  subject  oi  jwisprudence,  and  no  natural 
rule  which  may  exist,  forms  a  part  of  the  laio  unless  identified 
with  the  will  of  the  state  so  indicated.  What  the  state  wills  is 
the  conterminous  measure  of  law ;  no  pre-existing  rule  is  the 
measure  of  that  will." 

§  6.  But  a  law  in  the  primary  sense  must  be  founded  on  a 
recognition  of  the  nature  of  the  things  which  it  affects : — that  is, 
of  a  natural  laio  in  the  secondary  sense  of  the  word  :  for  a  rule 
founded  on  a  contradiction  of  the  nature  of  things  is  a  rule  im- 
possible to  be  executed,  or  cannot  subsist  as  a  rule.*  There 
fore,  all  laws  made  for  man  must  recognize  some  conditions  as 
the  conditions  of  his  existence  ;  and  hence  a  recognition  of  his 
moral  nature,  or  of  a  necessity  in  his  nature  to  regard  actions  as 

'  Domat  includes  natural  law,  derived  by  a  priori  reasoning,  in  the  law — the  sub- 
ject of  jurisprudence  ;  and  speaks  of  some  rules  as  being  evident  without  reasoning, 
and  of  others  which  require  reasoning  to  make  them  evident.  Domat :  Civil  Law. 
Treatise  on  Laws,  ch.  ii.,  §1 — 37 ;  and  see  Bowyer,  Univ.  Pub.  Law,  p.  103.  In  this 
system,  tlie  mind  of  the  individual  jurist  determines  the  law;  it  is  his  dubjecfive  ap- 
prehension of  a  rule  of  action :  and  only  that  rule  which,  in  his  judgment,  the  state 
ought  to  enforce.  Chanc.  D'Aguesseau  approves  of  Domat's  system  in  this  respect : 
see  (Euvres,  Tom.  I,  p.  645-6.  Mr.  Reddie,  Inquiries  El.  <fec.,  p  48,  says  of  Kant's 
Metaphysische  Anfangs  Grijnde  der  Rechtslehre,  and  Fichte's  Grundlage  des  Natur- 
^echts,  that  "  they  established  in  Germany  the  complete  recognition  of  the  distinction 
between  ethics  and  law,  or  jurisprudence,  between  the  legality  and  the  morality  of 
human  actions."  But  Mr.  Keddie  sometimes  speaks  of  jurisprudence  as  if  it  compre- 
hended the  science  of  what  ought  to  be  law ;  see  Inquiries  El.  itc,  pp.  24,  25. 

■•'  Savigny  :  Heut.  Rom.  Recht,  §  7.  Tr. :  "  With  reference  to  this  quality  of  the 
law,  by  which  it  has  an  actual  determined  existence  in  reference  to  any  given  state  of 
things  in  which  it  may  be  appealed  to,  we  call  it  positive  law." 

=  Molloy  de  Jure  Marit.  B.  iii.,  c.  9,  §  1,  2.  Pufendorf,  B.  i.,  c  6,  §  1.  Co.  Lit. 
fo.  97,  b.  Lieber  :  Pol.  Eth.,  vol.  1.  p.  98,  249.  "  Law  is  the  direct  or  indirect,  ex- 
plicit or  implied,  real  or  supposed,  positive  or  acquiesced  in  expression  of  the  will  of 
human  society  represented  in  the  state ;  or  it  is  the  public  will  of  a  part  of  human 
society  constituted  into  a  state."  Compare  Encyc.  Am.,  voL  vii.,  Append.  Law,  Ac, 
by  Judge  Story. 

*  Dig.  Lib.  1.,  Tit.  17,   §  186.     Qua?  rerum  natura  prohibentur  nulla  lege  confir- 

mata  sunt.      Co.  Lit.,  92  a.     "  Lex  spectat  naturae  ordinem,  the  law  respecteth  the 

order  and  course  of  natxire.     Lex  non  cogit  ad  impossibilia.     The  law  compels  no  man 

to  impossible  things.     The  argument  ab  impossibili  is  forcible  in  law.     Impossibile  est 

•  quod  natnrse  rei  repugnat." 


LAW A   KULE   OF   RIGHT.  S 

being  right  or  wrong,  is  necessarily  made,  as  the  recognitioTi  of 
a  fact,  in  the  act  of  prescribing  a  law  for  him  founded  on  the 
idea  of  distinguishing  between  actions  as  right  or  wrong,  or  on 
the  existence  of  a  moral  obligation  in  the  rule  ;  that  is,  an  obli-  j 
gation  founded  on  his  nature,  and  also  resulting  from  a  law  in  / 
the  primary  sense.'  Now,  since,  in  point  of  fact,  all  laws,  en- 
joined by  society  or  the  state,  have  been  founded  on  this  idea, 
the  law  prescribed  by  the  state  recognizes  the  existence  of  a 
natural  law  in  the  primary  sense  of  the  word  law.^ 

§  1.  But  since  the  state  makes  this  acknowledgment  of 
natural  law  by  classifying  or  distinguishing  certain  actions  as 
actions  to  be  done  or  not  to  be  do.ne,  as  permissible  or  not  per- 
missible,' it  so  far  interprets  this  law  of  nature  by  asserting  if 

*  Whewell :  Elements  of  Morality,  including  Polity,  B.  i.,  c.  4,  90.  "  Rights  are  not 
law  only  nor  justice  only,  (meaning  by  law  the  law  of  society,  and  hy  justice  that 
which  is  right,)  they  are  both  Law  and  Justice  ;  Law,  because  Justice  ;  Justice  ex- 
pressed in  Law;  "  and  see  the  same,  §§  105,  106,  107.  Lieber :  Pol.  Eth.,  B.  ii.,  §  31. 
"The  state,  I  said,  is  founded  on  the  relations  of  right;  it  is  a,  jural  society,  as  a 
church  is  a  religious  society,  an  insurance  company  a  financial  association  ;  the  idea 
of  the  just,  and  the  action  founded  upon  the  idea  called  justice,  is  the  broad  foundation 
and  great  object  of  the  state."  The  same,  §§  33,  35  :  "  The  state  being  a  jural  society, 
and  rights  being  imaginable  bctweea  moral  beings  only,  it  follows  that  the  state  has 
likewise  a  moral  character,  and  must  maintain  it."  The  word  jural  is  also  emploj'ed 
by  AVhewell,  B.  i.,  c.  4,  90  :  "  By  the  adjective  jural  we  shall  denote  that  which  has 
reference  to  the  doctrine  of  rights  and  obligations  ;  as  by  the  adjective  moral  we  denote 
that  which  has  reference  to  the  doctrine  of  duties."  And  therefore,  the  state,  in  es- 
tablishing coercive  rules  of  action,  acts  juridically.  The  term  juridical  is  commonly 
used  as  if  synonymous  with yi/(Z4c'jW.  A  tribunal  in  acting  judicially,  necessarily,  also 
acts  juridically  :*  that  is,  declares  what  is  justice  or  right.  But  the  state,  when  it  pro- 
mulgates laws,  promulgates  them  as  rules  of  right.  The  word  juridical  will  herein  be 
employed  to  designate  the  declaration  of  law,  whether  made  by  the  legislative  or  the 
judicial  function. 

The  term  juridical  is  sometimes  used  to  designate  the  province  of  the  private  jurist : 
the  proper  word  for  which  is  juristical,  (6'er.  juristisch.)  A  society  of  jurists  in  Eng-' 
land  have  called  themselves  "  the  juridical  society."  In  the  Fi-ench  version  of  Falck's 
Juristische  Encyclopedic,  translated  Ency.  Juridiqiie,  vii.,  note,  it  is  said  :  "  nous  avons 
ordinau-ement  traduit  I'adjectif  aMemand  juristisch  Tpar  juridique,  quoique  le  mot  fran9ais 
signifie,  dans  I'usage  plutot  ce  qui  se  rapporte  hlajuridictioii  que  ce  qui  se  rapporte  aa 
droit.  Nous  aurious  pu  souvent  le  remplacer  par  legcd,  mais  comma  il  est  necessaire, 
surtout  dans  un  expose  de  principes,  de  ne  pas  coufoudre  le  droit  et  la  loi,  nous  avons 
evite  d'employer  I'un  pour  I'autre,  juridique  (repondant  h.  juristisch,  rechtlich)  et  Uyal 
(repondant  h  gesetdich.j' 

^  lleddie's  Inquiries  Elem.  &c.,  p.  9,  58.  There  are  noble  passages  in  the  ^vritings 
of  Cicero,  and  others,  which  are  frequently  cited  by  authors  who  base  jurisprudence 
upon  natural  law;  (e.  g.  Cic.  De  Rep.  iii.,  22 — the  passage  given  by  Lactantius,  Inst. 
vL,  8  ;  Demosthenes  Or,  contra  Aristcgit.  i.)  "Whether  they  have  been  used  to  the 
purpose  depends  entirely  on  the  definitions  assumed  for  these  words.  Their  force  differs 
essentially  as  they  are  used  either  in  a  legislative  or  a  judicial  point  of  view. 

3  Hobbes  :  Leviathan,  De  Civitate,  c.  xxvi.  De  legibus  civihbus.  "  Legem  igitur 
civilem  sic  definio :  lex  civilis  unicuique  civi  est  regula  qua  civitas  vcrbo  scripto,  vel 
alio  quocunque  voluutiitis  signo  idoi  eo,  ad  distinctioiiem  boni  et  mali  uti  imperat." 

Ency.  Am.,  vol.  vii.,  p.  581.     Appendix  by  Judge  Story  :  "  By  a  law  we  understand 


6  LAW — ^THE   WILL   OF   THE   STATE. 

to  be  accordant  with  those  distinctions.'  The  maintenance  ot 
those  distinctions  being,  therefore,  the  will  of  the  state,  those 
whom  it  appoints  to  carry  out  its  will  are  bound,  from  their 
relations  to  the  state,  to  accept  and  enforce  those  distinctions,  as 
the  criterion  of  the  law  of  nature.  Judicial  tribunals  consti- 
tuted hy  the  state,  must,  therefore,  in  interpreting  the  law,  re- 
ceive these  distinctions  as  the  exposition  of  the  law  of  nature, 
and  as  the  highest  rule  to  which  they  can  refer.  The  natiiral 
law  is  included  in  the  law,  in  this  ordinary  sense,  only  so  far  as 
the  law  is  the  judgment  of  the  state  upon  what  shall  constitute 
right  or  wrong  action  ;  and  it  is  immaterial,  for  the  judgment 
of  the  subordinate  tribunals,  whether  the  jurisprudence  which 
they  have  to  interpret  is  considered  to  admit,  in  theory,  the  ex- 
istence of  natural  law,  or  to  refer  all  rules  of  action  to  the 
authority  of  the  state  ;  since,  supposing  it  to  admit  the  pre-ex- 
istence  of  natural  law,  as  a  rule  of  action,  it  assumes  the  inter- 
pretation of  it,  given  by  the  state,  to  be  the  guide  for  legal 
decision." 

a  rule  prescribed  by  tbe  sovereign  power  of  a  state  to  its  citizens  or  subjects,  declaring 
some  right,  enforcing  some  duty,  or  prohibiting  some  act." 

*  This  recognition  of  moral  obligation  in  jurisprudence  is  entirely  independent  of 
the  foundation  of  that  obligation,  as  a  question  of  Ethical  Philosophy.  It  is  im- 
material in  jurisprudence  whether  the  law  of  nature  is  called  "  moral  sense  ;  common 
sense  ;  understanding  ;  rule  of  right ;  natural  justice  ;  natural  equity  or  good  order  ; 
truth ;  doctrine  of  election  ;  repugnancy  to  nature,"  or  any  such  term.  ]5cntham,  in 
quoting  these  various  denominations  of  the  law  of  nature,  asserts  the  propriety  of  his 
own  favorite  term,  "  the  law  of  utility,"  or  "  greatest  happiness  principle:"  which  is 
equally  vague,  as  the  description  of  a  rule  of  action,  until  some  legislator  is  assumed 
to  exist,  who  shall  determine  what  is  useful,  or  what  is  the  greatn-t  happiness.  See 
Bentham's  Morals  and  Legislation,  ch.  ii.,  14,  note.  And  compare  Austin:  Prov. 
Jurisp.,  p.  133  ;  note,  p.  174  ;  Austin  being  of  the  same  ethical  sohool.  Also,  Reddle's 
Inquu-ies  Elem.  <fcc.,  2d  ed.,  p.  54 — 72.  Utility  has,  in  fact,  always  been  recognized 
in  juridical  action  as  an  exponent  of  what  the  law  ought  to  be.  See  the  same,  p.  73; 
and  that  there  is  herein  no  real  inconsistency,  see  Mackintosh :  Progress  of  Ethical 
Philosophy. 

"^  2  Dodson's  Adm.  Rep.,  The  Le  Louis,  247.  Speaking  of  the  slave-trade.  Lord 
Stowell  says  :  "I  must  remember  that,  in  discussing  this  question,  I  must  consider  it, 
not  according  to  any  private  moral  apprehensions  of  my  own,  (if  I  entertained  them 
ever  so  sincerely,)  but  as  the  law  considers  it."  ...  (p.  249) :  "  An  act  must  be  legally 
criminal — I  say  Iq/ally  criminal  because  neither  this  court  nor  any  other  can  carry 
its  private  apprehensions,  independent  of  law,  into  its  public  judgments  on  the  quality 
of  actions.  It  must  conform  to  the  judgment  of  the  law  upon  that  subject ;  and  act- 
in"-  as  a  court  in  the  administration  of  law,  it  cannot  impute  criminality  to  an  act 
where  the  law  imputes  none.     It  must  look  to  the  legal  standard  of  morality." 

Hobbes  :  Leviath.,  c.  2G — "  Leges  natunv  et  leges  ciriles  in  eadem  civitate  se  mutuo 
continent."  Masse  Droit  Commer.,  Tom.  i.,  42.  Scaccia  Tractat.  de  Commer.  Qua;st., 
VII.,  Par.  ii.,  Ampl.  1^,  §  4,   li).     Hegel,  Grundlinieu  der  Philosophie  des  Rechts, 


NATIONAL   LAW.  7 

§  8.  Since  the  power  of  the  state,  or  of  society,  is  assumed 
by  the  state  to  be  the  result  of  natural  law  jn  the  signification 
either  of  a  necessary  condition  or  of  a  rule,  the  only  natural 
principles,  which  the  laio  can  recognize  as  such,  are  those  which 
admit  the  existence_  of  ^society ,_as  ^natural ;  and  no  principles 
can  form  a  part  of  it  which  are  founded  upon  a  supposed  state 
of  nature,  anterior  or  opposed  to  society,  or  on  the  supposed 
law  of  such  a  state,  as  being  the  true  law  of  nature.' 

§  9.  The  actual  conditions  of  human  existence  have  divided 
mankind  into  separate  communities  or  states,  each  called  sovereign^ 
because  each  exercises,  independently  of  the  rest,  those  powers 
of  society  which  are  essential  to  the  purposes  of  such  separate 
existence.'' 

The  rules  of  action  prescribed  by  any  single  sovereignty  or 
state  are  known  to  the  individuals  under  its  dominion  as  the 
law^  in  the  ordinary  sense  (in  contradistinction  to  etliics) ;  or 
national  law  (corftnonly  termed  in  English,    municipal),'   as 

§  212  :  "  Im  positiven  Rechte  ist  daher  das  was  gesetzmassig  ist,  die  Quelle  derErkent- 
niss  dessen  was  Rrcht  ist,  oder  eigentlich,  was  Rechtens  ist :  " — 

Tbis  proposition  is  almost  untranslatable  from  the  want  of  an  English  word  cor- 
responding with  the  German  Recht,  Latin  Jas,  French  droit.  Law  being  used  not  to 
designate  that  only  but  what  is  meant  by  the  Ger.  Gesezt,  Lat.  lex,  Fr.  loi.  (Lieber's 
Pol.  Eth.,  sect.  30,  n.)  The  passage  is  equivalent  to  : — In  law — the  rule  identified 
with  the  will  of  the  state,  that  which  is  legal,  or  according  to  law,  (lex,  loi,  Gesetz,)  is 
the  means  of  ascertaining  that  which  is  the  rule  of  right — the  jural  rule,  jus,  droit, 
Recht : — and  not  vice  versa. 

The  American  Literature  on  the  Slavery  question  affords  numberless  instances,  in 
whfch*  the  converse  of  this  proposition  is  made  the  foundation  of  the  argument. 

'  Spincza :  Tractatus  Politici,  cap.  ii.,  15.  Domat :  Loix  Civ.  Tr,  cb.  ii.,  §2. 
Cousin:  Introd.  Hist.  Philo.,  p.  II  :  "In  the  place  of  primitive  society,  where  all  things 
were  in  confusion,  man  created  a  new  society  upon  the  basis  of  one  single  idea,  that 
of  justice.  Justice  established  constitutes  the  state.  The  use  of  the  state  is  to  cause 
justice  to  be  respected  by  means  of  force.  *  *  *  Hence  arises  a  new  state  of  society, 
civil  and  political  society,  which  is  nothing  less  than  justice  acting  by  means  of  that 
legal  order  which  the  state  represents." 

Professor  Foster's  Introductory  Lecture  before  the  London  University.  Law  Maga- 
zine, N.  Y.,  Feb.  1852.  "If  asked,  therefore,  to  explain  the  expression  employed  at 
the  outset — natural  law, — the  answer  would  be,  that  portion  of  moral  obligation  which 
is  enforceable  by  public  authority."  Comte  :  Tr.  de  Legislation,  Liv.  i.,  ch.  6.  Com- 
pare Calhoun,  A  Disquisition  on  Government;  Works,  vol.  i.,  p.  58. 

*  A  fact  assumed  in  every  system  of  jurisprudence.  Comp.  Lieber  :  Pol.  Eth.,  B.  ii., 
§  61.     Bla.  Com.,  vol.  i.,  Introd.,  p.  42. 

'  This  portion  of  the  subject  of  jurisprudence  is  ordinarily  denominated  municipal 
law  by  English  wTiters.  Blackstone  (Comm.  I.,  Introd.,  p.  44)  is  most  commonly  cited 
as  authority  for  its  use :  but  it  was  employed  by  English  lawyers  long  before  his  time, 
(see  I.  Vaughan,  R.  191,  anno  17,  Car.  ii.,)  to  signify  tho  law  of  any  one  state  or 
nation  ;  or,  what  is  commonly  called  "  the  law  of  the  land  "  According  to  the  analogy 
of  the  languages  of  Continental  Europe  mu/ijcipa^  /aw  would  imply  the  local  law  of 
Bome  political  body  less  than  a  state  or  nation — the  law  of  a   municipium,  a  town  or 


8  LAW   FOR   STATES. 

proceeding  from  the  authority  of  a  single  polity  or  state,  and 
having  effect  only  within  the  territorial  limits  of  its  dominion. 
These  rules  may  or  may  not  be  consistent  with  the  law  of  nature, 
or  true  principles  of  ethics,  but  in  being  prescribed  by  the 
highest  power  within  the  limits  of  such  state,  and  constituting 
the  judgment  of  such  power  on  the  principles  and  effect  of 
natural  law,  they  must  be  taken,  within  those  limits,  in  all  legal 
or  judicial  considerations,  as  the  highest  rale  of  action. 

§  10.  Since  the  whole  variety  of  human  interests  and  action 
cannot,  from  their  nature,  be  distinctly  divided  among  and  in- 
cluded under  the  limits  of  different  states,*  the  powers  of  society, 
in  reference  to  such  interests  and  action  as  are  beyond  the  sepa- 
rate control  of  single  states,  can  only  be  exercised  among  states 
recognizing  no  superior  among  themselves,  by  a  united,  or  re- 
ciprocal reference  to  principles  of  antecedent  authority  and 
universal  obligation.  They  must,  therefore,  refer  to  the  condi- 
tions of  man's  existence  (a  law  in  the  seconflary  sense),  and  to 
human  reasoning  in  regard  to  those  conditions,  as  giving  the 
only  law  (indei^endent  of  agreements  which  themselves  rest  on 
that  law  for  their  obligation)  which  can  be  recognized  as  a  rule  of 
action  and  one  of  natural  origin — an  origin  distinct  from  their 
own  juridical  will.  But  because  they  recognize  no  superior 
among  themselves  in  determining  that  law  of  nature,  the  only 

exposition  of  it  which  can  have  legal  force — that  is,  a  force  like 

•  • 

city,  or  at  most,  of  a  province.  For  a  justification  of  this  use  of  the  term  natiotuu 
law,  compare  Bentham's  Morals  and  Lea;islation,  ch.  xviii.,  26.  Reddie's  Inquiries 
(fee,  pp.  93,  94,  236,  and  the  same  author's  Historical  View  of  the  Law  of  Marit. 
Commerce,  p.  1. 

With  jurists  who  have  used  the  Latin  language,  jus  civile  is  employed  as  the  equiv- 
alent of  that  which  is  here  denominated  national  law,  as  by  Grotius,  B.  et  P.  Proleg., 
§  1  :  "Jus  civile,  sive  Romanum,  sive  quod  cuique  patrium  est "  tfcc,  and  compare  Hobbes' 
definition  of  _;ms  civile  (ante  §  7,  n.)  The  term  has  geiieral'y  the  same  force  with 
the  classical  Roman  jurists  :  but  it  was  also  sometimes  used  by  them  in  other  senses, 
as  will  be  shown  hereafter,  (ch.  iv.,)  and  compare  Smith's  Diet.  Antiq.,  Jus.  The 
name  "civil  law"  cannot  well  be  given  to  that  which  is  here  called  nah'o/faZ law,  since 
it  is  already  used  to  indicate  the  Roman  law,  or  the  Roman  law  as  generally  received 
in  Europe,  in  contradistinction  with  English  common  law,  and  is  also  employed  to 
designate  that  portion  of  the  law  which  does  not  include  punitive,  or  the  so-called 
"  criminal "  law. 

^  Bowyer  :  Univ.  Pub.  Law,  p.  139  :  "  For  it  is  impossible  to  confine  the  effects  of 
municipal  laws  absolutely  within  tlie  territories  of  each  state ;  and,  therefore,  the  laws 
of  different  countries  have  points  of  contact  which  arise  from  the  general  intercourse 
of  mankind,  and  may  be  looked  upon  as  a  necessary  part  of  the  scheme  of  laws  which 
regulate  the  world,  divided  as  it  is  into  independent  nations  and  sovereignties." 


INTERNATIONAL   LAW.  8 

that  of  the  laio,  in  tlie  ordinary  sense,  as  above  defined — ^mnst 
be  that  which  has  been  allowed  by  such  states ;  each  con- 
stituting an  independent  authority  in  ascertaining  the  true  prin- 
ciples of  that  law/ 

From  this  mutual  acknowledgment  of  principles  of  natural 
law,  and  the  agreement  of  sovereign  states  founded  on  them, 
arises  that  which  is  properly  called  international  law,  in  respect 
to  its  objects  and  jurisdiction,  but  oftener,  perhaps,  the  "law  of 
nations : "  a  name  usually  taken  to  be  more  appropriate  because 
the  term  may  mean  either  a  law  of  which  nations  are  the 
authors,  or  one  of  which  nations  are  the  subjects.  And,  indeed, 
this  law  limits  in  some  respects,  and  in  others  extends,  the  action 
or  authority  of  separate  nations  and  sovereignties ;  but  while  it 
derives  its  force  and  origin  mainly  from  principles  necessarily 
acknowledged  among  nations  as  having  the  character  of  a  pre- 
existent  natural  law,  it  still  is  made  to  have  the  effect  or  actual 
force  of  law  by  th^  action  of  those  nations,  since  each  claims  an 
equal  right  to  define  or  interpret  the  supposed  natural  law, 
equivalent  to  equal  power  of  legislation.' 

§  11.  "WTien  this  international  law  or  law  of  nations  is  viewed 
as  a  rule  of  conduct  between  nations  or  states  as  the  subjects  of 

'  7  Cranch,  136-7;  Marshall,  J.  Bentliam  (Morals  and  Legist.,  c.  19,  §  2)  pro- 
posed to  use  internationallaw  in  this  sense,  following  D'Aguesseaii,  (Qiluv.,  T.  i.,  p.  445,) 
writing,  17o7  and  Dr.  Zouch,  1650,  who  distinguished  _/(<«  inter  r^flnfes  from  jus  gen- 
tium ;  see  Reddie :  Elem.  International  Law ;  AVheaton's  I.  L. ;  Wildman's  Listitutes 
of  do. ;  FceUx.  Droit  International  Prive,  §  1. 

Bl.  Com.,  B.  I. :  Intro.,  p.  43,  B.  iv.,  67.  Suarez :  De  Legihus,  etc..  Lib.  ii.,  c.  2,  9. 
"  Nunquam  eiiim  civitates  sunt  sibi  tarn  sufficientes  quam  indigeant  mutuo  juvamine  et 
societate,  interdum  ad  majorem  utilitatem,  interdum  ob  necessitatem  moralem.  Hac 
igitur  ratione  indigent  aliquo  jure  quo  dirigantur  et  recte  ordinentur  in  hoc  genere  socie- 
tatis.  Et  quamvis  magna  ex  parte  hoc  fiat  per  rationem  naturalem  non  tamen  sufficien- 
ter  et  immediate  quoad  omnia,  ideoque  specialia  jura  poterant  usu  earundem  gentium 
introduci."  Whewell:  El.  of  Moral,  itc,  B.  II.,  ch.  vi.,  §  214.  "But  the  general 
rules  and  analogies  of  natural  Jus  lead  to  determinations  of  the  rights  and  obligations 
of  nations  which  form  a  body  of  acknowledged  law.  This  body  of  law  is  Jus  inter 
genteg,  and  may  be  termed — International  Jus." 

'  Pufendorf:  Droit  de  la  Nat.  et  des  Gens.,  1.  2,  c.  iii.,  §  7.  Grotius  :  B.  et  P. 
Proleg.,  §  17.  "  Et  hoc  jus  est  quod  gentium  dicitur,  quoties  id  nomen  a  jure  naturali 
distinguimus."  Grotius  here  refers  to  international  law,  the  law  of  which  nations  are 
the  subjects,  and  arises  from  their  consent — "  ita  inter  civitates,  aut  omnes  aut  plerasque, 
ex  consensu  jura  quadam  nascipotuerunt" — in  the  same  section,  defining  this  jus  gen- 
tium. In  other  places,  Grotius  speaks  of  the  term  jus  gentium  as  being  used  for  what 
he  caMs jus  naturale,  as  ch.  i.,  §  14 — "jus  naturale,  quod  ipsum  quoque  gentium  dici 
solet;  "  in  s.ame  chapter,  §  11,  1,  he  notices  the  distinction  made  in  the  Ilomaii  law  be- 
tween J«.?  naturale  andjus  gentium,  considering  it  as  out  of  use,  "  usum  vix  uUum  habet" 
The  necessity  of  preserving  each  of  these  significations  o(  jus  gentium  wiU  be  shown 
hereinafter  in  this  chapter  and  in  the  second. 

1* 


10  ATJTHORITT   OF   INTERN ATIONAL   LAW. 

that  law,  and  is  compared  with  the  municipal  law  of  any  one 
of  those  states  in  reference  to  the  relation  of  superior  and  inferior, 
which  is  a  pre-existent  condition  of  law  in  the  sense  of  a  rule 
of  action :  or,  in  other  words,  when  its  authority  is  compared 
with  that  of  the  municipal  (national)  law  of  any  one  state  as  the 
rule  of  action  within  its  own  dominion  or  national  limits,  it  is 
at  once  seen  that  the  international  law,  in  this  point  of  view,  is 
not  strictly  a  law  j  since  the  mutual  independence  of  nations 
precludes  the  idea  of  that  relative  superiority  and  inferiority.' 
It  is  only  a  rule  of  moral  obligation  fin-  nations  or  states  in  their 
political  existence."  But  so  far  as  this  international  law  affects 
the  actions  of  individuals,  and  is  enforced  by  the  authority  of 
some  state,  it  becomes  a  law  in  the  strict  sense,  and  at  the  same 
time  becomes  identified  with  municipal  law,  in  becoming  a  part 
of  the  law  enforced  by  a  state  within  its  own  domain  or  national 
jurisdiction. 

§  12.  It  is  only,  therefore,  as  a  law  'between  states,  as  its  sub- 
jects, that  international  law  has  a  separate  existence  from  muni- 
cipal law :  and  in  this  application  of  the  international  law  it 
receives  the  name  of  a  law  only  by  way  of  analogy  :  that  is,  it 
is  only  analogous  to  a  law  in  the  pro2")er  sense.  When  inter- 
national law  is  enforced  by  some  state  within  Vis  own  national 
limits,  as  a  law  in  the  strict  sense,  it  is  then  distinguished  from 
the  municipal  law  only  by  its  having  a  different  application  and 
effect.  Its  legal  authority,  whenever  it  acts  as  a  law  in  the 
proper  sense,  is  identified  with  that  of  some  municipal  (national) 
law,  or  the  law  prevailing,  territorially,  under  the  exclusive 
dominion  of  some  nation.' 

§  13.  The  distinction  thus  made  in  the  law,  of  being  inter- 
national and  municipal,  indicates,  at  the  same  time,  the  various 
nature  of  its  jurisdiction,  or  the  variety  in  the  objects  and 
interests  which  it  affects,  and  the  difference  in  the  nature  of  its 
origin,  as  either  in  the  associated  or  separate  authority  of  nations 
or  states.     And,  though  this  distinction  is  not  founded  upon  a 

'  Rayneval :  Instit.  du  droit  de  la  nature  et  des  gens,  note  10,  dia  1  Lir.,  p.  viii. 
MTieaton  :  Internat.  Law,  p.  17.     D'Aguesseau :  Qiluvres,  Tom.  I.,  p.  445. 

*  Reddie  :  Histor.  View  L.  of  Marit.  Com.,  p.  24.  Hence  called  by  Austin  ;  Prov. 
Jurisp.,  p.  207,  a  law  of  "  positive  morality." 

^  Reddie's  Inquiries  in  International  Law,  2d  ed.,  p.  412,  466. 


LAW    OF   NATURE   RECOGNIZED.  1] 

difference  in  the  origin  of  the  law,  as  being  in  part  derived  from 
natural  principles,  or  principles  of  ethics,  and  in  part  from  the 
will  of  society,  neitlier  does  it  imply  a  denial  of  the  moral  foun- 
dation of  either  of  these  divisions  of  the  law  in  the  obligation 
of  natural  rules  of  action.  On  the  contrary,  each  of  tliese 
manifestations  of  the  power  of  society  rather  asserts  their  exist- 
ence and  authority:  justifying  that  power  on  the  ground  that 
those  rules  are  made  efficacious  by  such  manifestation.' 

The  international  law,  otherwise  called  "  the  law  of  nations," 
in  the  sense  of  a  rule  of  which  states  are  the  subjects,  as  well  as 
the  municipal  law  of  any  one  state,  may  or  may  not  be  consistent 
with  the  true  dictates  of  natural  reason,  or  what  ought  to  be 
received  among  all  nations  as  natural  law.  Each  of  these  divi- 
sions of  the  law  has  changed,  while  constantly  claiming  to  agree 
with  those  principles.  "Whatever  may  have  been  the  specula- 
tive opinions  of  philosophers,  natural  law,  or  right,  has  always 
been  confessed  by  states  and  jurists  to  exist,  and  to  be  of  con- 
stant obligation ; '  but  has  had  effect  as  Imo,  in  the  sense  of  the 
subject  and  guide  of  judicial  decision,  only  so  far  as  acknow- 
ledged by  sovereign  powers,  nations,  or  states. 

§  14.  It  is  not  here  denied  that  the  true  law  of  nature,  the 
unchangeable  dictates  of  just  reason,  being,  by  the  supposition, 
co-existent  with  the  nature  of  man,  must  be  constantly  binding 
on  all  mankind,  independently  of  the  j)ro visions  of  human  law.^ 
The  nature  of  the  mind  being  such  that  man  is  capable  of  moral 
choice  independently  of  all  earthly  power.  *  The  agreement  of 
the  human  law  with  the  natural  or  divine  precepts  must  in  each 
case  be  a  question  which  each  person,  subject  to  both,  must  de- 
termine in  his  own  conscience  for  himself;  though  the  human 
law  may  not  allow  his  decision  to  have  any  practical  effect  in 

'  Compare,  on  this  question,  Phillimore :  Intemat.  Law,  Introduction,  and  ch.  iii. 

*  Lieber:  Pol.  Eth.,  B.  i.,  g  39,  40,  41.  Bowyer:  Univ.  Public  Law,  ch.  iv.  Red- 
die's  Inquiries  Elem.  &c.,  p.  9,  58. 

"  Austin :  Prov.  of  Jurisp.,  p.  280,  n.  4.  "All  the  older  writers  on  the  so-called 
law  of  nations  incessantly  blend  and  confound  international  law  as  it  m,  with  inter- 
national law  as  it  ought  to  be  ;  with  tliat  indeterminate  something  which  tliey  suppose 
it  would  be,  if  it  conformed  to  that  indeterminate  something  which  they  style  the  law 
of  nature." 

Von  Jlartens  was  the  first  writer  who  pointed  out  the  necessity  of  avoiding  this 
confusion.  See  Martens :  Law  of  Nations,  ch.  i.  Reddie  :  Inq.  in  International  Law, 
ch.  ii.  ;  and  Austin,  continuation  of  note  cited. 

*  Lieber's  Pol.  Eth ,  B.  iv.,  c.  2. 


12  WILL   OF   THE   STATE   6UPRKME. 

excusing  a  violation  of  its  own  provisions  ;  it  being  essential  to 
its  own  existence  that  it  should  itself  decide  as  to  such  agree- 
ment, and  enforce  its  own  commands  without  regard  to  any 
other  judgment.  And  in  this  respect  it  is  immatei'ial  whether 
the  individual  opposes  to  the  will  of  the  state  his  single  judg- 
ment of  the  natural  law,  or  refers  to  a  recognized  body,  or 
church,  as  authoritative  in  such  questions.  The  authority  of 
such  church  in  matters  of  law,  resting  on  its  being  supported 
by,  or  identified  with,  the  supreme  power  of  the  state ;  and  in 
the  absence  of  such  identification,  acting  on  the  individual  by 
his  voluntary  choice,  or  the  judgment  of  his  conscience.' 

§  15.  Municipal  law,  according  to  Blackstone's  definition,  ie 
"  a  rule  of  civil  conduct  prescribed  by  the  supreme  power  in  <!i 
State,  commanding  what  is  right,  and  prohibiting  what  is 
wrong."  The  latter  clause  of  this  definition  has  been  criticised 
as  superfluous,  if  that  be  riglit  which  the  supreme  power  may 
call  such ;  or  inconsistent,  in  denying  the  supremacy  of  that 
called,  supreme,  by  implying  anotlier  legal  criterion  of  right 
tlian  its  own  judgment.  And  in  Blackstone's  analysis  of  this 
definition,  speaking  of  "the  declaratory  part" — "declaring 
what  is  right,  and  prohibiting  what  is  wrong,"  he  says,  "  it  de- 
pends not  so  much  upon  tiie  law  of  revelation  or  of  nature  as  on 
the  will  of  the  legislature." 

Tlie  supreme  power  in  the  state  must  necessarily  be  absolute, 
in  being  subject  to  no  judge,*  It  may  give  to  its  own  will  the 
name  of  right,  and  enforce  it  as  law ;  but  as  the  essential  con- 
ditions of  man's  nature,  and  the  ends  of  society,  must  always  be 
the  same, — to  support  which  states  exist,  a  violation  or  denial 
of  their  existence  would  be  to  the  same  degree  a  destruction  of 
the  basis  of  the  state,  and  would  free  the  individual  subject  from 
the  obligation  of  obedience.  The  limits  of  the  definition  are  a 
question  of  political  ethics  rather  than  any  part  of  a  view  of 
the  law  /  which  should  be  a  statement  of  vjJiat  is,  rather  than 

'  D'Aguesseau:  CEuv.,  Tom.  L,  p.  688.  There  are,  of  course,  many  writers  who 
might  he  cited  against  this  view.  Compare  Bowyer's  Univ.  Pub.  Law,  p.  73 — 87. 
Biinsens  Signs  of  the  Times,  ch.  v. 

*  Lessee  of  Livingston  v.  Moore  and  others.  7  Peters  R.,  546.  Johnson  J. — "  The 
power  existing  in  every  body  politic  is  a,u  absolute  despotism."'  Paley  :  Mor.  and  PoL 
Phil.,  B.  vi ,  c.  6.     Bodin  :  Repub.,  B.  i.,  c.  8.     Austin :  Prov.  Jur.,  p.  295. 


ACTION   OF   SUPREME   POWER.  13 

of  what  ought  to  he  / '  for  which  purpose  the  abridged  definition 
is  comprehensive  enough — "  municipal  law  is  a  rule  of  action 
prescribed  by  the  highest  power  of  a  state;"'  not  regarding  it 
as  capable  of  being  wrong:  that  is,  not  judging  it  by  any  rule 
out  of  itself.' 

§  16.  The  supreme  power  of  a  state,  or,  more  correctly,  the 
person  or  persons  holding  that  power,  may  always  claim  to  inter- 
pret their  own  legislation  by  a  reference  to  natural  law,  as  hav- 
ing been  always  the  guide  and  exponent  of  their  intention.  And 
in  every  sovereign  nationality  this  power  must  exist,  and  be 
somewhere  vested.  Such  interpretation  from  the  source  of  the 
law  is  practically  identified  with  the  sovereign  act  of  legisla- 
tion. But  the  administrators  of  the  law,  as  subordinates  of  this 
sovereign  power,  or  of  its  possessors,  either  executive  or  judicial, 
cannot  assume  to  themselves  the  right  of  annulling,  by  a  de- 
cision under  the  law  of  nature  appealing  to  their  consciences, 
the  decrees  of  that  sovereignty  which  gives  them  their  powers, 
and  determines  the  limits  of  their  judgment.*  And  where,  by 
the  law  of  that  sovereign  will,  the  ordinary  course  of  legislation 
is  delegated  to  limited  governments,  the  possessors  of  legisla- 
tive power  cannot  alter  the  limits  assigned  to  them  on  grounds 
derived  from  the  law  of  nature. '  So  far,  however,  as  the 
supreme  power  adopts  the  natural  law  in  the  expression  of  its 
own  will,  and,  which  is  essential  to  such  adoption,  refers  to  a 
settled  interpretation  of  it,  it  becomes  municipal,  or  inter- 
national law,  and  the  rule  for  private  action  and  judicial  de- 
cision.' 

'  Quid  sit  juris,  non  quid  sit  justam  aut  injustum.     Austin:  Prov.  Jur.,  p.  276. 

'  Kent's  Coram.,  Lect.  xx.,  pr.  "  Municipal  law  is  a  rule  of  civil  conduct  pre- 
scribed by  the  supreme  power  of  a  state." 

'  Co.  Lit.,  fo.  110,  a  :  Of  the  power  of  Parliament,  "  Que  il  est  de  tres  grand  honor 
et  justice,  et  que  nul  doit  imaojiner  chose  dishonorable  :"  cites  PI.  Com.,  398,  b.  Doctor 
and  Student,  ca.  55,  fol.  164.  Compare  a  summary  of  various  authorities  on  this 
point  in  Comment,  on  Const,  and  Stat.  Law,  by  E.  F.  Smith,  ch.  vii. 

■*  Bacon's  Essays,  57.  Calder  v.  Bull,  3  Dallas,  398,  Kant's  W.,  vol.  i.,  Essay 
on  the  Faculties. 

^  Fortescue  :  de  Laudibias,  ch.  xiii. 

*  Austin  :  Prov.  of  Jurisprudence  Determined,  p.  173.  "The  portion  of  the  posi- 
tive law,  which  is  parcel  of  the  law  of  nature  (or,  in  the  language  of  the  classical 
jurists,  which  is  parcel  of  tlie  jus  gentium)  is  often  supposed  to  emanate,  even  as  posi- 
tive law,  from  a  divine,  or  natural  source.  But  (admitting  the  distinction  of  positive 
law  into  law  natural  and  law  positive)  it  is  manifest  that  law  natural,  considered  as  a 
portion  of  positive,  is  the  creature  of  human  sovereigns,  and  not  of  the  Divine  monarch. 


14  POSITIVE   LAW. 

§  17.  If  natural  law  were  to  be  recognized  in  jurisprudence 
as  a  rule  existing  anterior  to  the  will,  and  independent  of  the 
action  of  states,  or  society,  the  portion  of  law  which  is  confessed 
to  originate  solely  in  the  will,  or  decree  of  states,  miglit  properly 
he  distinguished  in  jurisprudence  as  a  separate  division  of  la/w.^ 
When  this  distinction  is  made,  such  portion  is  known  as  posi- 
tive law  ;  which  designation  is  proper  for  the  purpose  when  the 
term  is  understood  to  refer  only  to  the  oi^gin  of  that  portion  in 
the  will  of  the  state. "  But  if  the  term  positive  is  used  to  ex- 
press the  authoritative  nature  of  the  law,  no  one  part  of  the  law 
is  more  entitled  to  the  term  than  another ;  it  is  all  equally  au- 
thoritative, whether  a  rule  of  natural  origin,  or  originating  in 
the  autonomous  decree  of  the  state.  If  the  term  is  used  to  mean 
that  which  is  determined  upon  by  the  state  as  its  will, — set,  set- 
tled \v^o\\^  jpositus^ — positive  law  includes  all  law  recognized  as 
a  judicial  rule,  or  the  law  in  the  sense  herein  before  given  as  the 
ordinary  sense,  viz.,  those  rules  of  action  which  are  enforced 
by  the  authority  of  the  state.'  Some  term  is  necessary  to  ex- 
press a  rule  originating  in  the  decree  of  the  state,  and  since  this 
term  positive  law  is  commonly  used  to  distinguish  such  law 
from  rules  of  natural  origin  enforced  by  the  state,  and  is  also 
used  to  express  the  whole  of  law  in  the  ordinary  sense,  the  term 
positive  law  has  become  a  somewhat  ambiguous  one.  Positive 
law  is  now  used  by  the  best  authors  to  signify  every  rule  that  ie 
law.  Jurisprudence  is  defined  by  Austin  as  being  the  science 
of  positive  law ;  that  is,  the  science  of  what  the  rule  given  or 

To  say  that  it  emanates  as  positive  law  from  a  Divine,  or  natural  source,  is  to  confound 
positive  law  with  law  whereon  it  is  fashioned,  or  with  law  whereunto  it  conforms." 

'  Grotius:  B.  et  P.,  Lib.  i.,  c.  i.,  ix.  "  1.  Est  et  tertia  juris  significatio  qua;  idem 
valet  quod  lex,  quoties  vox  legis  largissime  sumitur,  ut  sit  regula  actuum  moralium 
obligans  ad  id  quod  rectum  est,"  etc.  "  2.  Juris  ita  accepti  optima  partitio  est  quae 
apud  Aristotelem  exstat,  ut  sit  aliud  jus  naturale,  alind  voluntarium,  quod  ille  legitimum 
vocat,  legis  vocabulo  strictius  po-sito  :  interdum  et  rb  «V  rofei,  constitutum.  Idem  dis- 
crimen  apud  Hebrajos  reperire  est,"  etc. 

Hugo:  Encyclopjedia,  p.  16,  no.  2,  takes  jus  constitutum,  or  quod  ipse  populus  sibi 
constituit,  for  the  Latin  term  corresponding  to  what  is  in  the  text  called ^«VtVe  law. 

Suarez :  De  Legibus  etc.,  Lib.  i.,  c.  3,  sec.  13. 

*  Compare  Neal  v.  Farmer,  9  Georgia  R.,  ."STS. 

D'Agnesseau :  CEuvres,  Tom.  L,  p.  260.  '"Au  milieu  d'un  grand  nombre  de  loix 
positives  fournies  par  les  moeurs  des  Peuples,  ou  par  la  volonte  Souveraine  du  Legis- 
lateur."     But  in  the  same  vol.,  p.  447,  natural  is  discriminated  from  positive  law. 

'  1  Vaughan  R.,  191,  (anno  19  Car.  II.)  "  For  the  freehold  is  not  a  natural  thing, 
but  hath  its  essence  by  the  positive  municipal  law  of  the  kingdom." 


JURISPRUDENCE   DEFINED.  15 

allowed  bj  the  state  is.^  The  science  of  what  ought  to  he  the 
rule  is  the  science  of  political  ethics. ' 

§  18.  If  jurisprudence  is  taken  to  be  the  science  of  law  in 
the  strict  and  proper  sense  only  (which  involves  tlie  reUition  ol 
a  superior  and  inferior,  §  1),  it  is  the  science  of  the  hiw  of  a 
single  nation  only,  i.  e.,  the  science  of  some  one  municijpal,  or, 
more  correctly,  of  some  one  national  law ; '  and  the  inter- 
ludional  law  is  known  in  jurisprudence  only  as  a  subordinate 
part  of  some  one  such  national  law ;  or,  in  otiier  words,  the 
international  law  is  known  in  jurisprudence  only  as  it  may  be 
applied  by  one  national  source  of  law  to  relations  of  private 
persons  which  gi-ow  out  of  the  existence  of  other  nations ;  since 
international  law  is  not  law  in  the  strict  sense,  except  as  it  may 
be  enforced  by  some  one  nation  (ante,  §'12).  The  term  general^ 
or  universal  juAsjyrudence^  would  signify  only  the  aggregated 
science  of  different  systems  of  national  or  municipal  law. 

§  19.  But  since  the  jurisprudence  of  each  state  (as  a  conse- 
quence of  its  jural  character)  recognizes  natural  reason  as  a  rule 
of  intrinsic  force,*  and  in  its  mimicipal  and  international  law 

'Savigny:  Heut.  Rom.  Recht,  §5.  Austin:  Prov.  Jurisp.,  p.  131,  and  notes; 
also,  p.  197,  and  ante,  p.  11,  n.  3.  Mackeldey,  by  Kaufmann :  Introd.,  §§  3,  9,  and 
the  notes,  distinguishing  the  philosophy  of  positive  law  from  philosophical  law.  Com- 
pare Doctor  and  Student,  ch.  iv. 

Jurisprudence  is  sometimes  used  in  the  sense  of  the  science  of  abstract  right.  Long's 
Discourses,  (Law  Lib.,  N.  S.,  vol.  44,)  p.  5.  "Jurisprudence  is  the  science  of  right." — 
Brande's  Diet.  Mr.  Gushing  (Introd.  to  the  Study  of  the  Roman  Law,  Boston,  18.54,  p.  6) 
takes  it  in  the  sense  of  the  application  of  law  to  particular  cases ;  and,  in  p.  168,  gives 
it  the  sense  of  un^vritten  law,  common  law,  and  judicial  law :  he  also  uses  the  term 
"jurisprudential"  as  synonj-mous  with y^<^a^.  With  the  French  lawyers,  jurisprudence  is 
contrasted  with  the  lois,  Projet  (of  the  Code  Civil),  Discours  preliminaire,  p.  xix.  *  * 
"  On  ne  peut  pas  plus  se  passer  de  jurisprudence  que  de  lois  "  Foelix,  Dr. :  Int.  Pr., 
p.  382.  "Lois  positives  et  jurisprudence."  Mr.  Reddie  uses  it  in  the  sense  of  the 
.whole  national  law  of  some  state,  or  the  whole  of  that  rule  of  action  which  is  applied 
within  a  certain  national  domain.  Reddie  :  Inq.  El.  &c.,  ch.  v.  Law  Review,  Lon- 
don, Nov.,  1855,  p.  128  :  "Some  term  is  necessary  to  denote  the  science  of  law,  and 
we  shall  so  employ  the  word  jurisprudence."  *  *  «  "Bylaw  is  here  understood 
positive  law, — th.it  is,  the  law  existing  by  position,  or  the  law  of  human  enactment. 
Jurisprudence  is  the  science  of  positive  law,"  &c.,  citing  Suarez :  de  Leg.  etc.,  L.  i., 
ch.  103,  sec.  13. 

^  "  For  the  wisdom  of  the  law-maker  is  one,  and  of  a  lawyer  is  another."  Bacon ; 
Adv.  Learn.,  Works,  Am.  Ed,,  1  v.,  238. 

"  Falck  :  Jurist.  Ency.,  §  11,  (French  tr.)  "  Comme  le  droit  prend  naissance  dans 
la  volonte  collective  d'une  societe  civile,  il  doit  y  avoir  autant  de  droits  qu'il  existe  de 
societes  civiles  ou  d'etats." 

*  Bowj'er :  Univ.  Pub  Law,  pp.  34,  35.  Whewell's  Elements  Mor.  &c.,  B.  ii,, 
ch.  vi.,  §  213.  "  Since  in  all  nations  the  definitions  of  rights  and  obligations  are  in- 
tended to  be  right  and  just,  it  is  natural  that  there  should  be  much   that  is  common 


16  UNIVERSAL   JURI8PRUJ)ENCE. 

applies  that  reason  to  the  unalterable  conditions  of  human  ex- 
istence, thus  recognizing  the  law  of  nature,  in  the  primary  and 
secondary  senses  of  the  word  law,  it  may  be  anticipated  that 
some  principles  or  rules  will  be  found  to  be  the  same  in  the  law 
of  many  different  states:  and  these  rules,  so  found  to  obtain 
generally,  may  be  distinguished  from  the  rest  of  the  law  of  any 
one  state  by  their  extent ;  that  is,  by  their  being  generally 
recognized  and  enforced  by  the  several  possessors  of  the  power 
of  society.  And  though  the  whole  law  of  each  nation  is  judi- 
cially taken  to  be  conformable  to  natural  reason, '  those  princi- 
ples, when  thus  known  by  their  general  extent,  may  be  judicially 
considered  founded  on  the  necessary  conditions  of  human  exist- 
ence, and  therefore  be  judicially  taken  as  having  universal 
application  in  all  countries,  and  under  the  sovereign  authority 
of  every  nation.'  They  may  be  considered,  in  the  jurispru- 
dence of  any  one  countiy,  as  natural  principles  ;  not  only  be- 
cause recognized  by  the  national  law,  but  because  founded  on 
the  general  reasoning  of  men  living  in  the  social  state.*  Tliey 
may,  therefore,  be  considered  the  subject  of  a  jurisprudence 
distinct  from  that  of  any  one  nation — a  general,  or  universal 
jurisprudence ;  general,  or  universal,  because  historically  known 
to  prevail  among  all  nations,  or  among  the  more  powerful  and 
enlightened.* 

in  the  views  and  determination  of  all  nations  on  the  subject.  That  which  is  com- 
mon in  the  determination  of  all  nations  respecting  rights  and  obligations  is  called 
Jus  Natvne,  or  Jus  Gfndvm.  That  which  is  peculiar  to  the  law  of  a  particular  state, 
or  city,  is  called  Ju«  Civile,  or  Jus  Municipale.  We  may  distinguish  these  two  kinds 
of  Jus  as  Natural  Jus  and  National  Jus."     Also,  the  same,  B.  vi.,  c.  i.,  §  1139. 

'  Ayliffe's  Pandects,  p.  6. 

'  De  Tocqueville  :  Dem.  in  Am.,  voL  iL,  p.  84.  "  A  general  law — which  bears  the 
name  of  Justice — has  been  made  and  sanctioned,  not  only  by  a  majority  of  this  or 
that  people,  but  by  a  majority  of  mankind.  *  *  *  A  nation  may  be  considered 
in  the  light  of  a  jury  which  is  empowered  to  represent  society  at  large,  and  to  apply 
the  great  and  general  law  of  Justice." 

In  Bowyer's  Univ.  Pub.  Law,  oh.  iv.,  where  jurisprudence  is  exhibited  by  the 
a  prion  method,  following  Domat,  universal  jurisprudence  is  equivalent  to  political 
ethics.  Duponceau  on  Jurisdiction,  pp.  126,  128,  recommending  the  study  of  "gen- 
eral jurisprudence,"'  which,  he  says,  is  part  of  the  common  law,  and  which  he  laments 
"has  fallen  too  much  into  neglect,"  does  not  distinguish  it  from  "  universal  justice  " — 
"the  eternal  principles  of  right  and  wrong." 

*  Aristot. :  Rhet.,  L.  i.,  c.  13.   15.     Reddie's  Inq.  Elem.,  &c.,  85-87. 

*  Here  universal  jurisprudence  is  derived  by  reasoning  a  posteriori.,  according  to 
Grotius'  method  ;  and,  so  derived,  it  has  no  necessary  identity  with  that  derived 
a  priori,  in  the  manner  pursued  by  Domat,  (see  Loix  civiles  ;  Tr.  des  Loix,  and  the 
summary  given  by  Bowyer,  Univ.  Pub.  Law,  p.  68,)  and  also  by  Pufendorf,  and  others, 


/^ 


LAW    OF   NATIONS.  17 

§  20.  The  term  law  of  nations,  jus  gentium,  had  "been  origi- 
nally employed  by  the  Roman  jurists  to  designate  legal  princi- 
ples having  tliis  general  extent,  before  it  became  applied  to  that 

as  Manning :  v.  Comm.  Writers  on  international  law,  or  the  law  of  nations,  in  the  same 
sense,  may  be  divided  into  two  classes :  those  who  derive  it  a  priori  are,  however, 
properly  speaking,  writers  on  ethiai ;  those  only  who  derive  it  a  posteriori  are  writers 
on  law.  Law  determined  in  the  manner  pursued  by  the  last  is  derived  by  the  inductive 
method,  or  empirically,  in  the  language  of  the  German  writers.  (For  a  similar  distinc- 
tion among  writers  on  political  and  religious  systems,  compare  La  Mennais  :  Essai  sur 
riuditfcrcuce  &c.,  Tom.  ii.,  p.  158.  De  Maistre :  Soirees  de  St.  Petersburg,  Tom.  i., 
p.  280.) 

Bowyer's  Comm  on  Mod.  Civil  Law,  Lond.,  1848,  p.  26.  "The  Romans  give  the 
reason  of  the  universality  of  what  they  call  the  law  of  nations  in  these  words, — quod 
naturalis  ratio  inter  omnes  homines  constituit.  But  the  civilians  of  modern  times 
have  drawn  their  classification  from  the  reason  of  the  alleged  universality  of  the  law, 
and  not  from  that  universality  itself,  wliich,  owing  to  the  ignorance  of  some  nations, 
does  not  in  point  of  fact  exist.  That  reason  is,  because  the  obligatory  force  of  the  law 
is  pointed  out  by  the  mental  faculties  of  man.  This  universally  obligatory  law  (though 
not  universally  obser\'ed)  is  called  natural  law,  and  is  thus  defined  by  Grotius,"  &c., 
citing  B.  et  P.,  Lib.  i.,  c.  i.,  §  10.  i.  Now  Grotius  clearly  distinguishes  in  §  12,  of  the 
same  chapter,  between  these  two  methods  of  ascertaining  the  law ;  and  though  he  is 
the  leading  author  following  the  inductive  method,  he  still  attributes  its  autkoriti/, 
when  ascertained,  to  nature,  or  to  the  Creator,  not  to  the  will  of  politi';al  states.  The 
question,  what  rules  do  the  mental  faculties  of  man  declare  to  be  obligatory  ?  is  solved 
by  the  history  of  man's  exercise  of  his  mental  faculties,  and  not  by  the  mental  faculties 
of  the  individual  jurist.  Mr.  Keddie  adheres  to  what  may  be  calleil  the  early  Roman 
school,  and  insists  that  the  modern  civilians  have  erred  so  far  as  they  have  derived 
their  jus  gentium  a  priori.  Showing,  too,  that,  in  fact,  the  principles  of  the  law  of 
nature,  as  unfolded  by  Pufendorf,  Cooceius,  Wolf,  and  others,  are  little  else  than  propo- 
sitions taken  from  the  Roman  law ;  stnpped  of  all  that  identified  them  with  the 
national  system  of  the  Romans.  (Reddie's  Inq.  Elem.  &c.,  74-76,  81.)  Gravina  de- 
clares, De  Ortu  &c.,  L.  i.,  Princip.  :  "  Quoniam  nihil  aliud  est  jus  civile,  nisi  naturalis 
ad  Romanse  Reipublic»  institutionem  relata,  Romanisque  moribus  et  Uteris  explicata 
ratio,"  etc. 

Bentham :  Moral  and  Leg.,  eh.  xviL  "  Of  what  stamp  are  the  works  of  Grotius, 
Pufendorf,  and  Burlamaqui  ?  Are  they  political  or  ethical,  historical  or  judicial,  ex- 
pository or  censorial  ?  Sometimes  one  thing,  sometimes  another ;  they  seem  hardly 
to  have  settled  the  matter  with  themselves.  A  defect  this,  to  which  all  books  must 
almost  unavoidably  be  liable  which  take  for  their  subject  the  pretended  law  of  nature ; 
an  obscure  phantom,  which,  in  the  imaginations  of  those  who  go  in  chase  of  it,  points 
sometimes  to  manners,  sometimes  to  laws ;  sometimes  to  what  law  is,  sometimes  to 
what  it  ought  to  be."  And  the  author  here  refers  to  ch.  ii.,  14,  of  the  same  work,  and 
his  note  to  the  passage,  which  is  herein  before  cited,  p.  6;  and  compare  Jlorhofs 
Polyhistor,  vol.  iii.,  Lib.  vi ,  c.  1.     De  Jurispnidentiae  universalis  Scriptoribus. 

Grotius  is  not,  indeed,  altogether  constant  to  the  method  indicated  in  the  passage 
referred  to.  Grotius :  B.  et  P.,  ch.  i.,  12.  "Now  that  any  thing  is,  or  is  not  the  law 
of  nature,  is  generally  proved  either  a  priori, — that  is,  by  argument  drawn  from  the 
very  nature  of  the  thing  ;  or  a  posteriori, — that  is,  by  reasons  taken  from  something 
external.  The  former  way  of  reasoning  is  more  subtile  and  abstracted ;  the  latter, 
more  popular  The  proof  by  the  former  is  by  .showing  the  necessary  fitness  or  unfit- 
ness of  any  thing  with  a  reasonable  and  sociable  nature.  But  the  proof  by  the  latter 
is,  when  we  caimot  with  absolute  ceitainty,  yet  with  very  great  probability,  conclude 
that  to  be  the  law  of  nature  which  is  generally  believed  to  be  so  by  all,  or,  at  least, 
the  most  civilized  nations.  For  a  universal  effect  requires  a  universal  cause ;  and 
there  cannot  well  be  any  other  cause  assigned  for  this  general  opinion  than  what  is 
called  common  sense." 

2 


18  UNIVERSAL   LAW. 

law  Avliich  is  herein  before  called  the  international  law,  and 
which  had  not  with  the  Romans  any  recognized  existence,  aft 
distinct  from  their  own  public  law,  jus  jpiihlicum,  Homanum. 
These  principles  will  always  constitute  a  part  of  the  inter- 
national law,  the  rules  of  which  are  in  a  gi"eat  degree  founded 
on  their  existence,  as  will  be  shown  in  the  next  chapter.  But 
they  exist  independently  of  it,  and  are  equally  a  constituent 
part  of  municipal  (national)  law.'  Tliere  will  always  be  a 
necessity  for  their  distinct  recognition,  and  for  some  appropriate 
term  by  which  to  distinguish  them.  Tlie  term  universal  law 
has  been  employed  by  late  English  writers  to  designate  these 
principles,  corresponding  to  the  law  of  nations,  jus  gentium, 
of  the  Roman  jurists." 

§  21.  Law,  in  being  a  rule  of  action,  necessarily  regards 
both  agents  and  objects  of  action;  and  thus  in  its  inception  con- 
stitutes the  first  distinction  known  to  the  law,  in  determining 
who  or  what  are  agents,  and  who  or  what  are  the  objects  of 

'  D'Aguesseau  :  (Euvres,  Tom.  i.,  p.  444.  Duponceau  on  Jurisdiction,  pp.  18, 
110,  126,  128.  Compare,  also,  Bacon:  De  Augmentis,  Lib.  viii.,  Dejustitia  univer- 
sali,  seu  de  fontibus  juris.     Selden  :   De  J.  nat.  et  Gen.  &c.,  Lib.  i.,  c.  iii.,  vi. 

'  Benthara  uses  the  term  universal  to  describe  those  principles  which  are  commonly 
received  among  all  nations.  See  Morals  and  Legislat.,  ch.  xviii.,  24.  "  In  the  first 
place,  in  point  of  extent,  what  is  delivered  concerning  the  laws  in  question  may  have 
reference  either  to  the  laws  of  such  or  such  a  nation,  or  nations,  in  particular,  or  to  the 
laws  of  all  nations  whatsoever ;  in  the  first  case,  the  book  may  be  said  to  relate  to 
Zca/,  in  the  other  to  universal  jurisprudence." 

"  Ealra  theoda  riht,  (the  right  of  all  nations,)  jus  getUlum."  Bosworth's  Lexicon 
Anglo-Sax.,  verb,  Riht. 

There  is  no  classic  Greek  term  answering  to  the  Latin  jus.  v6fjLOs  corresponds  to 
lex.  The  distinction  between  a  jus  I'Sioj',  proprium,  id  est  populis  vel  civitatibus  sin- 
gulis civile,  and  a  jus  Koivhv,  commune,  is  remarked  by  ArL«totle,  Rhet.,  Lib.  i.,  c.  13, 
15,  where  he  also  designates  the  latter  as  being  that  which  is  Kari  <pv(rii>,  secundum 
naturam  ;  but  recognizing  it  to  be  so  from  the  fact  that  it  is  \mivcrsally  received. 
Comp.  Thuc,  B.  iii.,  59,  to  koivo,  twv  'EW'fiywv  i/dfii/xa.  The  Byzantine  jurists,  who, 
about  A.  D.  876,  prepared  the  Greek  version  of  the  Corpus  Juris,  known  as  the  Basilica, 
(V,  Smith:  Diet.  Antiq.  Butler's  Horse  Juridica,  app.  iv.,)  used  the  term  y6innoy 
idvtKhv,  and  also  coined  from  juris-gentium  the  word  'lovpisytvrios.  See  Selden  :  De  J. 
Nat  et  Gent.  &c..  Lib.  i.,  c.  vi. 

Brougham  :  Polit.  Philos.,  Prelim.  Disc.  "  It  is  a  very  common  error  to  confound 
with  this  branch  of  the  law"  [referring  to  international  law,  here  denominated  by  Lord 
Brougham  "  the  law  of  nations,"]  many  of  those  general  principles  of  jurisprudence 
common  to  all  nations,  and  to  term  these  a  portion  of  the  law  of  nations."  With  equal 
justice  it  may  be  said  the  error  lies  in  calling  international  law  by  the  name  "  law  of 
nations  ;  "  or  rather,  it  lies  in  calling  by  one  name  two  distinct  sets  of  legal  princi- 
ples, viz.,  principles  known,  or  denominated  from  their  general  recognition,  or  applica- 
tion by  nations,  and  those  rules  which  are  applied  as  a  law  between  nations  ;  which 
last  are  derived  both  from  the  first — the  principles  universally  recognized — and  from 
the  agreements  and  customs  of  particular  states. 


PERSONS    AND   THINGS.  19 

action.  Agents,  under  a  rule  of  action  for  moral  beings,  being 
necessarily  such  as  are  considered  by  the  author  of  the  nile 
capable  of  choice  and  action ;  or  persons,  to  be  distinguished 
from  things:  the  latter  being  only  the  objects  of  action,  and 
incapable  of  personality — that  is,  of  capacity  for  choice  and 
action. 

Tlie  action  of  persons  may  be  in  direct  relation  to  other  per- 
sons as  the  objects  of  action ;  and  even  in  relation  to  things,  as 
such  objects,  is  of  legal  significance  only  in  respect  to  other  per- 
sons. In  other  words,  all  legal  relations  are  relations  of  persons 
to  persons — directly,  or  through  things.' 

§  22.  A  legal  relation  between  persons  consists  in  a  privilege 
and  obligation  as  mutually  essential.  This  privilege  and  obli- 
gation exist  in  each  of  these  classes  of  relations,  constituting 
rights  and  duties  as  correlative,  or  as  necessary  co-efficients  of 
each  other.' 

"When  rights  and  duties  are  classified,  they  must  always  be 
taken  as  rights  and  duties  of  persons,  since  it  is  only  by  the 
prior  recognition  of  persons  that  relations,  privileges,  and  obli- 
gation can  be  said  to  exist.  Rights  and  duties  cannot  be  sepa- 
rately classified  in  any  system  of  jurisprudence,  because,  being 
correlative,  they  cannot  be  separately  described ;  the  definition 
of  one  is  involved  in  the  definition  of  the  other. 

§  23.  The  prominent  distinction  between  rights  (with  their 
correlative  duties)  is  that  of  being  rights  in  relations  wherein 
persons  are  the  objects  of  action,  and  rights  in  relations  wherein 
things  are  the  objects  of  action.  But  since  persons  and  things 
are  associated  in  every  action  of  natural  persons,  it  is  impossible 
to  make  an  accurate  classification  on  this  distinction.'     Rights 

'  Ahrens :  Natnrrecht,  p.  83.  Tr.  "  A  being  endowed  with  self-consciousness,  rea- 
son, and  freedom  [power  of  choice]  is  called  a  person,  or  has  personality." 

"  The  law  relates  to  persons  as  its  groundwork  and  aim,  (Zweck.)  That  is,  it  has  an 
essentially  personal  character.  The  distinction  which  is  ordinarily  made  between  the 
law  of  persons  and  the  law  of  things,  as  of  two  co-ordinate  parts  of  the  law,  is  there- 
fore inaccurate.     All  law  is  throughout  a  law  of  persons." 

"  The  law  necessarily  relates  to  things  also,  inasmuch  as  these  compose  the  phys^i- 
cal  conditions  of  human  development.  But  the  law  relative  to  things  constitutes  only 
a  subordinate  division  of  the  law  relating  to  persons." 

"  Jus  et  obligatio  sunt  correlata.  Thibaut :  Syst  Pand.  Kechts,  Elementary  Part, 
§  I.     (Lindley's  TransL  in  vol.  86  of  Law  Library.) 

'  Compare  Austin :  Prov.  of  Jurisp.,  Appendix,  xviii. — xxv.  Wesenbecii  Comm. 
ad    Pandect,   Lib.    i.,    tit.    v.,   num.    1,   n.       "  Omne  jus    quo    utimur,    vel   ad   per- 


20  RIGHTS THEIK   SUBJECT   AJST)   OBJECT. 

considered  without  reference  to  specific  things  as  the  objects  of 
action  may  be  called  Hyhts  of  persons^  and  distinguished  from 
rights  considered  with  reference  to  specific  thingfj,  or  classes  of 
things,  as  the  objects  of  action :  which  may  in  a  certain  sense 
be  called  rights  of  things  ^  meaning,  however,  rather  the  rela- 
tions of  things  to  persons  having  rights  and  duties  in  respect  to 
tliose  things.' 

§  24.  A  right  may  be  considered  as  to  its  subject  or  its 
object.  The  subject  of  a  right  is  the  person  in  relation  to  whom 
it  exists;  its  object  is  the  matter  to  M'hich  it  relates.' 

Persons,  both  as  agents  and  objects  of  action,  are  the  subjects 
of  rights.  Things  can  only  be  the  objects  of  rights,  as  well  as 
the  objects  of  action. 

As,  from  the  nature  of  things^  they  can  be  regarded  in  a 
rule  of  action  only  so  far  as  they  are  in  the  power  and  posses- 
sion of  agents,  or  persons,  property  is  an  essential  attribute  of 
the  nature  of  things. ' 

sonas  pertinet  quibus  jus  redditur,  vel  ad  res  de  quibus  jus  redditur,  vel  ad  actiones  sive 
judicia  per  qme  jus  redditur."  Here,  in  the  first  instance,  jus  signifies  the  jural  rule  ; 
afterwards,  it  has  the  sense  of  a  right,  or  privilege. 

See  Reddie's  Inquiries  Elem.  &c.,  pp.  146 — 159,  for  the  distribution  or  arrange- 
ment of  private  law  made  by  Gaius,  Grotius,  Bodiuus,  Bacon,  Leibnitz,  Coccieus, 
Potliier,  and  Millar  of  Glasgow. 

'  Reddie's  Inq.  Elem.  ic,  p.  171.  "Now  rights  and  obligations  are  manifestly 
the  attributes  of  persons,  not  of  things.  And  to  divide  rights,  like  Judge  Black.stone, 
into  the  rights  of  persons  and  the  rights  of  things,  if  by  the  latter  ■words  are  meant 
rights,  not  over,  in  or  to,  but  belonging  to,  or  inherent,  and  vested  in  things,  we  have 
seen,  either  evinces  inaccuracy  of  thought,  or  is,  at  best,  misapplication  of  language. 
Again,  rights  and  obUgations  are  not  merely  the  attributes  of  persons  singly ;  they 
pre-suppose  and  exist  only  in  reference  to  other  persons.  A  single  man  existing  on 
the  surface  of  this  earth  would  have  certain  physical  powers  over  external  things,  but 
no  legal  rights.'' 

"  But  although  rights  and  obligations  are  in  reality,  and  correctlj',  the  relations  of 
individual  persons,  to  other  individuals,  they  are  plainly  correlative  terms." 

Hale,  whom  Blackstone  followed  in  this  distribution,  used  also  the  Latin  terms 
jura  rerum  and  jura  personarum.  The  word  jiis  signifies  law,  as  well  as  a  right — the 
effect  of  law.  Jura  rerum,  in  the  sense  of  the  law  relating  to  things,  would  have  a 
meaning.     Compare  1  Starke's  Ev.,  p.  1,  n.  h.     Austin:  Prov.  of  J.,  append,  xix. 

2  In  the  languages  of  which  the  Latin  is  the  principal  basis,  (the  Romance  lan- 
guages,) subject  (e.  g.  sujet,  Fr.)  is  commonly  used  to  designate  that  which  is  here 
called  the  object  of  a  right.  Mackeldey's  Civil  Law,  Comp.  Introd.,  §  14.  "In  Con- 
nection with  ever)-  right,  we  find  a  subject  and  an  object  The  subject  of  the  right  is 
the  person  on  whom  the  right  is  conferred ;  the  object  of  a  right  is  the  matter  to  which 
it  relates."  The  German  writers  generally,  when  employing  the  words  as  German 
words,  use  them  in  the  manner  here  followed  in  the  text.  See  Hugo  :  EncycL,  p.  11. 
Lindley's  Translation  of  Thibaut,  append,  ii. 

3  Compare  on  these  sections,  Long's  Disc.,  p.  109 — 115.  Coode  on  Legislative 
Expression,  p.  9. 


LAW — PUBLIC   AND   PRIVATE.  21 

§  25.  By  regarding  states,  or  sovereign  powers,  as  determin- 
insr  either  the  huvs  of  their  own  existence,  or  the  rules  of  action 
for  persons  subject  to  their  supremacy,  international  and  munici- 
pal (national)  law  may  each  be  divided  into  two  parts — viz., 
public  im^  private ;  though,  since  the  relations  of  individual 
persons  are  in  the  end  the  objects  of  each  division,  the  distinc- 
tion cannot  throughout  be  accurately  observed. '  It  is,  perhaps, 
more  correct  to  say,  municipal  (national)  and  international  law 
may  each  be  distinguished  as  either  public  or  private  law, 
accordiag  to  the  public  or  private  character  of  the  persons 
whom  it  aftects,' 

Tliat  may  be  called  private  municipal  (national)  law  which 
determines,  within  the  limits  of  a  state,  the  relations  of  persons 
towards  each  other  in  all  incidents  of  the  social  state  distinct 
from  the  political  existence  of  the  supreme  power. 

T\\Q,  public  part  of  mimicipal  (national)  law  is  that  by  which 
the  supreme  power  defines  or  asserts  its  own  nature,  bounds, 
and  purposes  within  its  own  limits ;  and  the  investiture  or  seat 
of  that  power ;  either,  as  existing  undivided,  or  centralized  in  a 
whole  people,  or  in  a  larger  or  smaller  portion  of  it,  or  in  a 
single  family,  or  person ;  or,  as  being  divided  and  distributed, 
according  to  its  objects,  among  various  depositaries. 

'  Mackeldey's  Coinpend.  Introd.,  §8.  "With  respect  to  its  object,  all  positive 
law  may  be  divided  into  public  and  private  law.  The  public  law  {jus  publicum)  com- 
prehends those  rules  of  law  which  relate  to  the  constitution  and  government  of  the 
state ;  consequently,  it  concerns  only  the  relations  of  the  people  to  the  government. 
The  private  law  {jus  pricatuni)  comprehends  those  rules  which  pertain  to  the  juridical 
relations  of  citizens  among  themselves."  This  division  of  the  law  into  public  and  pri- 
vate is  found  in  the  Institutes,  and  obser^'ed  principally  in  the  writings  of  the  civilians. 
If  not  very  philosophical,  or  distinctive,  it  is  convenient,  especially  in  treating  of  con- 
ditions of  freedom,  or  its  opposites ;  which  are  spoken  of  iu  a  political,  as  well  as  a 
social  connection.  It  is  not,  however,  essential  that  the  subject  of  jurisprudence  should 
be  thus  divided.  Austin,  in  Prov.  Jurisp.,  Appendix,  Ixi.,  observes  :  "  As  I  shall  show, 
also,  every  department  of  law,  viewed  from  a  certain  aspect,  may  be  styled  private ; 
whilst  every  department  of  law,  viewed  from  another  aspect,  may  be  styled  public. 
As  I  shall  show  further,  pub/ic  law  and  private  law  are  names  which  should  be  banished 
the  science  ;  for  since  each  will  apply  indifferently  to  every  department  of  law,  neither 
can  be  used  conveniently  to  the  purpose  of  signifying  any.  As  I  shall  show,  more- 
over, the  entire  corpus  juris  ought  to  be  divided  at  the  outset  into  law  of  things  and 
law  of  persons ;  whilst  the  only  portion  of  law  that  can  be  styled  public  law  with  a 
certain,  or  determinate  meaning,  ought  not  to  be  contradistinguished  with  the  law  of 
things  and  persons,  but  ought  to  be  inserted  in  the  law  of  persons  as  one  of  its  limbs, 
or  members." 

Mr.  Keddie :  Inquiries  Element.  Sec,  2G1-2,  regards  the  dLstinction  between  public 
and  private  law  as  essential  in  every  system. 

"  Savigny  :  Ileut.  Rom.  Recht,  li.  i.,  c.  2,  §  9.  The  German  term  biirgerliches 
Recht  corresponds  to  private  law.     Heffter:  Europ.  Volkerr.,  §  37. 


22  JTBISDICnON. 

The  private  international  law  *  determines  the  relations  of 
individuals  towards  other  national  authorities  or  jurisdictions 
than  that  with  which  by  the  public  nuinioipal  and  international 
law  they  are  primarily  associated  as  subjects;  and  constitutes, 
in  connection  with  the  private  municipal  law,  the  rules  of  ordi- 
nary peaceful  intercourse  of  nations  as  composed  of  private  indi- 
viduals. 

Public  international  law  is  that  which  concerns  tne  mutual 
relations  of  sovereign  states  or  powers,  as  such  ;  determining  the 
nature  of  such  relations,  and,  for  the  purpose  of  maintaining 
them,  furnishing  the  rules  of  diplomatic  intercourse  and  militaiy 
arbitrament. 

By  these  two  divisions  of  public  law,  in  A'arious  forms  of  ex- 
pression, have  been  determined  the  territorial  limits  for  the 
exclusive  sovereignty  of  different  nations,  in  legitimating  acts 
of  force,  or  agreement,  as  being  rightful  in  their  own  nature,  or 
in  their  existing  results. 

§  26.  The  distinction  of  the  law  as  being  municipal  (national) 
and  international  is  founded  on  the  separation  of  society  into 
states  occupying  certain  distinct  geographical  limits,  or  portions 
of  territory :  the  two  branches,  municipal  (national)  and  inter- 
national, each  contemplate  the  agents  and  objects  of  action 
according  to  the  t«rritorial  jurisdiction  under  which  they  may 
be  found.  The  international  law  recognizing  states  as  having 
authority  within  certain  territory,  and  persons  as  primarily  sub- 
ject to  one  or  another  system  of  municipal  (national)  law  accord- 
ing to  their  locality.  In  this  view  laws  are  terntoi^al  in  their 
nature,  as  having  effect  within  certain  geographical  limits. 

But  law  is  always  in  its  nature  personal,  or  a  law  for  certain 
persons.  JuTisdiction  is  a  term  signifying  the  authority  of  law 
over  a  certain  territory,  or  over  certain  persons ;  but  since  the 
action  of  persons  must  always  be  the  essential  object  of  all 
laws,  the  jurisdiction  of  laws  over  a  certain  territory  means  over 
all  persons  within  that  territory. 

'  The  use  of  the  term  Private  International  Law  is  now  very  generally  received  ; 
vide  1  Kent's  Comm.,  p.  2,  referring  to  M.  Victor  Faucher.  See,  also,  an  article  by  the 
latter  on  Private  International  Law,  in  Am.  Jurist,  vol.  xx.,  p.  33.  Storj':  Conf 
Laws,  p.  9.  Phillimore  :  International  Law,  Prcf.  xv.,  and  p  12.  Fcelix  :  Tr.  du 
Droit  International  Prive;  §  1.  "  Le  droit  international  se  divise  en  droit  public  et  en 
droit  prive."  Schwffner  :  Eutwicklung  des  Intemationalen  Privat  Kechts ;  Frankfort, 
1841.    Heffter:  Europ.  Volkerr.,  §  38.    Waechter,  in  Archiv.  i".  civil.  Praxis,  Bd  24,25. 


PERSONAL    LAWS.  23 

And  though  laws  are  known  as  iniles  having  a  coercive  force 
only  in  and  for  some  particular  geographical  district,  they  may 
he  spoken  of,  or  classiiied  and  distinguished,  by  their  applica- 
tion to  2>articular  persons.  LaAvs  in  establishing  relations  among 
men,  necessarily  establish  differences  between  them  as  the  sub- 
jects or  objects  of  the  rights  and  obligations  composing  those 
relations,  and  persons  under  any  system  of  law  may  be  classed 
according  'to  the  differences  which  it  recognizes  among  them ; 
and  the  law  itself  may  be  distinguished  as  attaching  to  certain 
persons,  or  as  being  divided  into  diSerent perso7ial  laws,  as  well 
as  being  the  territorial  law  of  some  national  jurisdiction. 

§  27.  This  distinction  of  laws  as  personal  may  obtain  both 
in  national  (municipal)  and  international  law ;  and  it  is  essential 

when  those  divisions  are  contrasted  with  each  other  as  the  con- 

f*  •  .  •     - 

parts  of  private  law — i.  e.,  law  applying  to  private  per- 
sons, yhe  national  (municipal)  law,  which,  according  to  the 
definition  of  it  before  given,  applies  to  persons  as  the  law  of  a 
certain  territory,  may  create  a  variety  of  relations  for  different 
individuals ;  and  when  the  international  law  (which  is  law  in  an 
imperfect  sense  only  when  states  are  regarded  as  its  subjects)  is 
applied  or  enforced'by  some  state  .within  its  own  territory,  and 
becomes  a  law  acting  on  private  persons,  it  is  necessaiily  ap- 
plied as  a  personal  law ;  because  it  is  applied  by  recognizing 
persons  as  connected  with  different  nations,  and  by  way  of  ex- 
ception to  the  territorial,  or  municipal  law  of  some  one  state. 
So  far  as  it  exists  distinct,  within  any  one  jurisdiction,  from  the 
national  law  thereof, — it  applies  as  a  personal  law^ 

So  far  as  any  legal  principles  which  are  included  in  the  uni- 
versal law,  or  "  law  of  nations,^''  establish  relations  for,  or 
between  particular  persons,  they  also  may  be  considered  as  a 

-  Hobbes :  Leviath.  De  Civitate,  c.  xxvi.  "  Legum  autem  alia  civibus  statuitur 
nniversis  ;  alia  certis  provinciis  ;  alia  certo  hominum  generi ;  alia  homini  quandoque 
singnlari."  Story:  Conflict  of  Laws,  §51.  Bowj-er's  Univ.  Public  L.,  p.  144-7. 
Hamilton's  Hedaya  :  Introductory  Disc,  respecting  personal  laws  in  HinJostan  ;  and 
Stat.  21,  Geo.  III.,  eh.  70,  relating  to  Inhabitynts  of  British  India.  Sir  Wm.  Jones: 
Inst,  of  Hindu  Law,  art.  203.  Savigny:  Geschicte  d.  R.  11.  im  Mittelalter,  Bd.  i., 
p.  115.  Canciani:  Leges  Barbarorum  Antiq.,  vol.  i.,  p.  345.  Sacliscnspiegel — 
Schwabenspiegel :  Ancient  Collections  of  the  customary  law  of  the  Saxons  and  Sua- 
bians.  The  jurisprudence  of  the  Middle  Ages  was  characterized  by  the  personal  extent 
of  laws  ;  and,  as  matter  of  history,  the  personal  extent  of  law  has  been  anterior  to  its 
territorial  extent.     See  Savigny  :  Heut.  Kom.  R.,  §  346. 


24  OKIGIN    OF   LAW. 

personal  law,  taking  effect  by  their  recognition  by  separate 
states,  or  nations,  each  applying  them  in  municipal,  or  inter- 
national law,  as  before  defined. 

§  28.  Although  it  is  herein  before  assumed  that  natural  law 
has  no  recognition  in  jurisprudence  as  legally  authoritative,  ex- 
cept as  it  is  supported  by  the  power  of  society,  or  of  the  state, 
and  therefore,  when  legally  or  judicially  operative,  must  be  iden- 
tified with  positive  law,  yet  it  is  also  considered  as  being  tru^in 
point  of  fact  that  all  sovereign  states  have  acknowledged  in 
some  form  tlie  pre-existence  of  natural  principles  of  right,  and 
as  the  originators  of  positive  law  have  claimed  to^coiTespond 
with  them.  Among  authors  and  legislators  these  principles 
have  always  been  recognized  Under  names  indicating  the  differ- 
ence of  their  origin  from  that  strictly  called  positive  law,  sucli 
as  the  law  of  nature,  the  divine  law,  the  law  of  right  reason,  &c.' 

Whether  all'  interpretation  of  tliese  principles,  gi.v?n  by 
sovereign  states  in  their  municipal  laws,  can  be  considered  aJs 
actually  corresj)onding  with  the  real  divine,  or  natural  rule, 
which  they  suppose  to  be  pre-existing,  may  be  judged  from  the 
various  decisions  which  successive  generations  of  lawgivers  have 
passed  on  the  acts  of  their  predecessors,  each  in  turn  founding 
their  own  judgments  and  corrections  upon  a  claim  to  more  just 
views  of  truth  and  right  reason.  - —    

§29.  The  application  of  jurisprudence  to  the  relations  of 
persons  and  things  is  in  most  modern  states  made  by  judicial 
tribunals,  distinct  from  the  supreme  legislating  authority  of  the 
state.''  But  whatever  rules  or  princijjles  such  tribunals  may 
apply  as  law,  they  apply  them  as  being  the  will  of  the  supreme 
authority,  and  as  being  themselves  only  the  instruments  of  that 
will.  The  will  of  the  state  is  to  be  ascertained  by  the  tribunal 
in  one  of  the  followincc  methods  : — 

First.  Direct,  or  positive  legislation,  is  the  first  and  ruling 
indication  of  the  will  of  the  state,  whether  it  acknowledges  or 
refers  to  any  rule  of  natural  origin  or  not. 

Second.    Since  the  will  of  the  state  is  to  be  presumed  to 

'  Grotius :  B.  et  P.,  Lib.  i ,  c.  i.,  §  10.    D'Aguesseau  :  (Euv.,  Tom.  i.,  pp.  446 — 449, 
Premiere  Instruc.     Whewell :  Pol.  and  Mor.,  §477.     Cicero:   De  Rep.,  iii.,  22. 
-  Lieber  :  Politicd  Ethics,  §  133.     Pascal :  Lettres  Provinciales,  xiv. 


JUDICIAL  PKECEDENT8.  S8 

accord  with  natural  law,  where  the  positive  legislation  of  the 
state  does  not  decide,  the  tribunal  must  ascertain  the  natural 
law  which  is  to  be  enforced  as  the  will  of  the  state/  But  this 
law  can  only  be  determined  by  such  criteria  as  are  supposed  to 
be  recognized  by  the  supreme  power  of  the  state,  if  such  criteria 
exist ;  and  this  law  when  so  determined  becomes  identified  in 
its  authority  with  positive  law.' 

K  a  state  is  supposed  to  be  in  the  commencement  of  its 
existence  as  a  state  administering  law,  or  governing  by  law,  the 
only  exposition  of  this  natural  law  would  be  the  reason  and 
conscience  of  the  judicial  tribunal^' 

§  30.  But  since  every  judgment  of  the  tribunal  which  has 
been  executed  and  upheld  by  the  power  of  the  state  must  be 
received  as  accordant  with  its  will,  every  such  judgment  becomes 
an  indication  of  the  natural  law,  as  received  by  the  state,  and, 
therefore,  equal  in  authority,  for  the  judgment  of  future  tribunals, 
to  the  law  received  by  positive  legislation.  Tribunals  estab- 
lished by  the  state  have,  therefore,  of  necessity,  a  quasi-\eg\^Qr 
tive  power  ;  or — the  tribunal,  the  object  of  whose  institution  is 
to  apply  the  law  given  by  the  state,  is  incidentally  a  source  of 
law.* 

But  there  is  this  difference  between  its  powers  in  this  respect 
and  those  of  the  state  itself,  that  the  latter  is  not,  in  any  legal 

'  To  use  the  terms  of  Koman  jurisprudence — the  law  proceeding  from  the  legislator 
is  expressed  by  esto ;  that  proceeding  from  the  tribunal  by  videtur.  Bacon  de  Aug.  Sc, 
Lib.  viii.,  c.  3,  10.  Aphorismus  32.  "  Curiae  sunto  et  jurisdictiones  qu£E  statuant,  ex 
arbitrio  boni  viri  et  discretione  sana,  ubi  legis  norma  deficit.  Lex  enim,  ut  antea  dic- 
tum est,  non  sufficit  casibus  sed  ad  ea  quae  plerumque  accidunt  aptatur.  Sapientissima 
autem  res  Tempus,  (ut  ab  antiquis  dictum  est,)  et  novorum  casuum  quotidie  auctor  et 
inventor.'' 

2  Ram  on  Judgment,  p.  2  :  "  A  judgment  that  is  constructed  of  certain  materials 
which  are  law,  and  is,  when  delivered,  a  part  of  the  law  of  the  land."  Legislation  is 
first  in  respect  to  authority,  but  in  the  natural  order  of  existence  the  judicial  rule 
appears  first.     Reddie's  Inquiries,  &c.,  p.  110 — 112. 

3  See  Eucyc.  Am.,  vol.  vii.,  pp.  576,  580,  586.  Appendix ;  Law,  Legislation,  Codes: 
by  Judge  Story — do.  p.  584.  "  The  legislation  of  no  country  probably  ever  gave  origin 
to  its  whole  body  of  lawa  In  the  formation  of  society,  the  principles  of  natural  justice 
and  the  obligations  of  good  faith  must  have  been  recognized  before  any  common  legis- 
lature was  acknowledged,"  &c.  Cushing  :  Introd.  to  Study  of  the  Roman  Law.  Bos- 
ton, 1854,  p.  22.  ' 

*  Reddie's  Inq.  Elem.  &c.,  p.  193-5.  Bentham,  objecting  against  this  source  of 
law,  calls  the  common  law,  a  law  ex  post  facto  :  see  Papers  relative  to  Codification, 
No  I.,  §  3,  and  Reddie's  Inq.  Elcm.  &c.,  Suppl.,  p.  104.  Dig.  L.  i..  Tit  4,  §  38. 
Consuetudinem,  aut  rerum  perpetuo  similiter  jndicatarum  auctoritatem,  vim  legis 
obt'mere  debere. 


26  CU8T0MABT   LAW. 

sense,  hound  by  any  previous  interpretation  of  the  natural  law, 
and  is,  in  the  theory  of  jurisprudence,  to  be  considered  as  the 
criterion  of  the  provisions  of  that  law,  while  the  tribunal  is 
presumed  always  to  follow  standards  of  interpretation  of  natural 
law  already  acknowledged  or  accepted  by  the  state,  so  far  as 
tliey  exist,' 

The  decision  made  by  any  judicial  tribunal  may,  therefore, 
be  always  compared  by  succeeding  tribunals  with  other  standards 
of  natural  law  which  are  presumed,  equally  with  that  decision, 
to  indicate  the  natural  law  as  received  by  the  state.  With  the 
lapse  of  time,  by  the  accumi^ation  of  concurrent  expositions  of 
the  natural  law,  the  power  of  each  tribunal,  successively  to  make 
law  in  this  incidental  manner,  becomes  more  limited  ;  because 
the  recognition  of  natural  law  by  the  state,  through  anterior 
tribunals,  has  become  more  definite  by  being  more  widely 
applied.' 

§  31.  The  principle  by  which  judicial  precedent  becomes  an 
exposition  of  the  legal  rule  of  action,  is  also  that  which  causes 
custom  to  be  juridically  recognized  as  having  the  coercive  force 
of  positive  law.     It  is  not  that  any  number  of  similar  actions 

•  Bentham :  Jforals  and  Legislation,  ch.  xvii.,  20  (of  Appendix  to  the  original  ed., 
1823,  vol  ii.,  p.  274).  "  In  that  enormous  mass  of  confusion  and  inconsistency,  the 
ancient  Roman,  or.  as  it  is  termed,  by  way  of  eminence,  the  civil  law,  the  imperative 
matter  and  even  all  traces  of  the  imperative  character,  seem  at  last  to  have  been 
smothered  in  the  expository.  Esto  had  been  the  language  of  primasval  simplicity : 
esto  had  been  the  language  of  the  twelve  tables.  By  the  time  of  Justinian  ( so  thick 
was  the  darkness  raised  by  a  cloud  of  commentators),  the  penal  law  had  been  crammed 
into  an  odd  corner  of  the  civil — the  whole  catalogue  of  offences,  and  even  of  crimes, 
lay  buried  under  a  heap  of  obligations — will  was  hid  in  opinion — and  the  original  esto 
had  transformed  itself  into  videtur  in  the  mouths  of  even  the  most  despotic  sovereigns." 
It  depends  upon  the  intention,  whether  this  was  blamable  or  not.  It  was  perhaps  only 
an  affectation  on  tho  part  of  the  prince  to  speak  like  an  expounder  of  existing  law 
when  called  upon,  by  an  exercise  of  autonomic  juridical  power,  to  relieve  the  law  of 
obscurity,  caused  by  conflicting  opinions  of  juridical  persons  who  were  not  sovereign. 

'Ram:  LegalJudg.,  c. i.,  xiv.  Bacon,  de  Aug.  Lib.,  viii.,  c.  8, 10.  Aphor.,  21—31. 
Lindley's  Thibaut,  Append.,  xii.,  and  note.  Falck  :  Jurist.  Ency.,  §  10.  (French  Tr.) : 
"  A  c6t4  du idroit  coutumier  vient  se  placer  la  practignejujiciaire,  Gerichts-fjebrmuh, 
I'asage  du  palais,  (usns  fori,  Observanz,  sti/lu.i  curice)  e'est  h  dire,  I'ensemble  des  regies 
de  droit  qui  se  forment  par  la  practiqne  uniforme  des  functionaires  publics  dans  les 
affaires  juridiques. 

"  Les  maximes  ainsi  etabUes  ont  aussi  force  des  lois ;  mais  quand  commencent 
elles  k  I'avoir?  CTest  ce  qu'il  n'est  pas  possible  de  preciser  ;  tout  se  reduit  h  ceci;  il 
faut  que  le  nombre  des  precedents  (praejudicatse)  soit  suffisant  pour  constituer  une 
opinion  sur  un  point  de  droit.  II  est  dvident  qu'il  serait  irrationel  d'attribuer  un  pareil 
effet  h.  une  seule  decision  judiciaire.  Quelquefois  cependant  I'autorite  d'un  fonctionaire 
oil  d'un  corps  a  etc  assez  grande  pour  mettre  h  jrs  de  doute,  par  une  seule  decision,  des 
points  de  droit  controverses." 


CUSTOM AN    EFFECT   OF    LAW.  27 

by  private  persons  in  certain  supposed  circumstances  can  make 
a  law  for  others  in  similar  circumstances.  No  one  person  subject 
to  the  supreme  power  of  civil  society  is  legally  held  to  do,  or 
refrain  from  doing,  this  or  that  act,  simply  because  others  before 
have,  or  have  not,  done  the  same  ;  nor  have  any  number  of  pri- 
vate individuals  the  power,  by  thcflr  example,  to  establish  a 
coercive  rule  for  another  individual.  Custom  is  juridically  re- 
garded as  an  effect  of  law,  not  as  a  cause  of  law.  It  is  judicially 
received  as  an  exposition  of  law,  because  that  which  has  been 
generally  received  and  acted  upon  by  the  subjects  of  a  civil 
state  as  a  rule  of  action  is  presump^vely  identified  with  the  will 
of  the  supreme  power  of  the  state,*  and  is,  therefore,  judicially 
held  to  be  reasonable  or  jural.  The  existence  of  the  custom  is 
judicial  evidence  of  a  rule  accepted  by  the  state  for  a  rule  of 
natural  reason  applied  to  certain  circumstances : "  and  hence  a 

'  Aristot. :  Rhet.,  Lib.  i.,  c.  2.  Metaphv.,  Lib.  i.,  c.  8.  Selden  :  De  J.  Nat.  etc., 
Heb.,  Lib.  i.,  c.  6.     Cicero :  de  Inventione,  Lib.  i.  «tc.     Hobbes :  De  Civitate,  ch.  26. 

'  Savijiiiy  :  Heut.  Kom.  R.,  §  12.  "  So  ist  also  die  Gewohnheit  das  Kennzeichen 
des  positiven  Rechts,  nicbt  dessen  Entstehungsgnmd."  Custom  is  tberefore  the 
mark  by  which  positive  law  is  known  to  exist,  not  the  cause  of  its  existence.  Tr., 
and  refers  to  Puchta  :  "Das  Gewohnheits  Recht."  "  Every  cvistom  supposes  a  law," 
per  Vaunlian  Ch.  J.  VIL  Viner's  Abr.,  1 88.  Statute  law  and  common  law  as  contrasted 
with  Statute  law,  in  English  jurisprudence,  have,  therefore,  the  same  theoretical  foun- 
dation. And  herein  lies  the  essential  correctness  of  C.  J.  Wilmot's  saying,  in  2  Wilson, 
348.  "  The  statute  law  is  the  will  of  the  legislature  in  writing  ;  the  common  law  is 
nothing  else  but  statutes  worn  out  by  time.  All  our  law  began  by  consent  of  the 
legislature,  and  whether  it  is  now  law  by  usage  or  writing  is  the  same  thing," — and  p. 
350  :  "  And  statute  law  and  common  law  both  originally  flowed  from  the  same  foun- 
tain."    But  compare  the  doctrine  of  Bl.  Com.,  Introd.,  Sect.  3. 

"  Positive  law,"  in  English  and  American  jurisprudence,  is  not  always  taken  to 
mean  statute  law.  Thus,  in  Somerset's  case.  Lord  Mansfield  says  :  "  Positive  law, 
which  preserves  its  force  long  after  the  time  itself  from  whence  it  was  created,  is 
erased  from  memory," — but  a  legal  rule  is  not  a  statute  rule  if  the  time  of  its  enact- 
ment cannot  be  shown,  ^o  C.  J.  Shaw  says,  18  Pick.  R.,  212  :  "by  positive  law  in 
this  connection  may  be  as  well  understood  customary  law  as  the  enactment  of  a 
statute ;  "  and  Blackstone,  speaking  of  a  provision  of  the  common  law,  says,  1  Comm., 
70:   "  now  this  is  positive   law  fixed   and   established  by  custom." 

Properly  speaking,  when  custom  has  this  general  extent,  its  antecedent  continua- 
tion is  not  inquired  into,  it  is  simply  ^aw.  "A  custom  cannot  be  alleged  generally 
within  the  kingdom  of  England;  fbr  that  is  common  law."  Co.  Lit.  fo.,  110  b.,  and 
fo.  11.")  b.  Sir  Henry  Finch,  Tr.,  p.  77.  Only  particular  customs  require  proof  of 
their  having  been  received  for  a  certain  length  of  time,  to  give  them  the  force  of  law. 
Thus  the  authority  of  the  Constitution  of  the  United  States  rests  on  general  custom, 
and  much  of  the  law  of  the  several  states  not  derived  from  England  is  customary  law, 
although  it  has  not  had  an  existence  such  as  is  required  by  the  law  of  England  to  give 
authority  to  a  particular  custom.  Compare  Mass.  Quarterly  Rev.,  vol.  L,  p.  466,  On 
the  legality  of  Slavery. 

Of  laws  losing  their  force  by  desuetude.  1  Kent,  4G7,  marg.  p.  .517,  7th  ed.,  note. 
Dr.  Ir>ing's  Introduction  to  the  Study  of  the  Civil  Law,  pp.  123 — 127.  Woodes:Lect. 
prel.,  p.  xxxiii. 


SS8  PRIVATE   JURISTS — FOREIGN    STATES. 

custom  must  be  tested  by  other  indications  of  natural  reason 
whicli,  injudicial  recognition,  are  identified  \\ntli  the  will  of  the 
supreme  power.' 

§  32.  Not  only  may  judicial  tribunals  compare  together  the 
judgments  of  their  predecessors  in  applying  natural  law  to  new 
relations  of  persons  and  tliftig?,  but  they  may  also  adopt  similar 
comparisons  made  by  private  individuals,  either  oral,  or  written, 
and  such  private  writings  or  exposition  of  the  law  may,  by  force 
of  continued  judicial  recognition,  become  a  farther  limitation 
on  the  discretion  of  subsequent  tribunals.' 

§  33.  Besides,  since  all  ^ates,  though  independent  of  each 
other,  are  equally  possessors  of  the  powers  of  society,  and  liold 
it  for  the  same  ends,  they  may  be  equally  presumed  to  intend  to 
conform  their  laws  to  the  natural  law.*    The  laws  of  foreign 


'  Tliis  testing  the  legality  or  lawfulness  of  a  custom  is  a  judicial  act,  and  to  be  dis- 
tinguished from  autonomic  recognition  or  disallowance  of  customs  by  the  sovereign. 
Co.  Lit.,  fo.  141,  a.  :  "  Malus  usus  abolendns,  and  every  use  is  evil  that  is  (as  our  author 
saith),  against  reason  ;  quia  in  consuetndinibus  non  diuturnitas  temporis,  sed  soliditas 
rationis  est  consideranda.  And  by  this  rule  cited  by  our  author  at  the  parliament 
holden  at  Kilkenny  in  Ireland,  (40  E.  3)  Lionel,  Duke  of  Clarence,  being  then  the 
Lieutenant  of  that  realme,  the  Irish  customs,  called  then  the  Brehon  law  (for  that  the 
Irish  call  their  judges  Brehons),  was  wholly  abolished  ;  for  that  (as  the  parliament  said) 
it  was  no  law,  but  a  lewd  custom,  et  m;ilus  usus  abolendus  est.  But  our  student  must 
know  that  King  John,''  &c.  The  gist  of  Coke's  following  observations  appear  to  be — 
that  it  was  by  a  sovereign  legislative  act  of  the  Conqueror  that  the  Brehon  law  was 
changed.  In  Le  case  de  Tanistry,  Davis  Rep.,  the  validity  of  a  Brehon  custom  of  in- 
heritance was  argued  before  the  courts,  and  the  usage  decided  to  be  invalid  ;  because, 
according  to  the  established  judicial  tests,  it  was  no  custom  at  all :  the  term  custom 
having  a  fixed  technical  meaning. 

"  Kent's  Comm.  Lect.,  xxi.,  xxii.  Falck :  Jur.  Ency.  (French  Tr.),  §  10:  "La 
doctrine,  c'est  h  dire  la  theorie  de  ce  qui  est  droit,  exposee  de  vive  voix  ou  par  ecrit, 
par  les  savants  voues  h  I'etude  de  la  jurisprudence,  devrait,  d'apres  sa  nature,  etre  seule- 
ment  un  moyen  auxilliaire  pour  apprendre  h  connaitre  le  droit  en  vigueur  ;  cependant 
elie  est  devenue,  t,  plusieurs  egards,  une  veritable  source  du  droit.  La  literature  juri- 
dique  en  particulier  a  exercee,  i  certaines  ep'.ques,  comme  le  montrent  toutes  les  his- 
toires  du  droit,  une  si  grande  influence,  que  beaucoup  d'ouvrages  de  jurisprudence 
ont  obtenu  formellement  force  de  loL  Mais,  il  faut  le  dire,  c'est  \h  un  abus  veritable, 
qui  n'a  pas  d'autre  motif  que  la  paresse  d'esprit,  ou  la  foi  h  I'autoritt'." 

Dig.,  Lib.  I.,  Tit.  ii.,  c.  2,  §  12.  Ita  in  civitate  nostra,  aut  jure,  id  est  lege,  con- 
stituitur,  aut  est  proprium  jus  civile,  quod  sine  scripto  in  sola  prudeutum  interpretutione 
consistit. 

Grotius,  B.  et  P.,  Lib.  I.,  c.  i.,  §  14.  Savigny,  on  the  vocation  of  our  age  for 
legislation  and  jurisprudence,  Hayward's  Transl.,  pp.  28,  29,  30.  Rum  on  Legal  Judg- 
ment, ch.  18,  sect.  5.     Reddie  :  Law  of  Marit.  Com.,  p.  438. 

This  authority  of  private  jurists  must  depend  upon  some  juridical  recognition  :  com- 
pare Bacon  :  de  Aug.  Sci..  Lib.  viii.,  c.  3,  §  10.    De  Justitia  Universali,  App.,  72 — 92. 

Though  in  the  Roman  system,  an  intrinsic  authority  seems  to  have  been  attributed  to 
the  Responsa  Prudentiim:  see  Savigny:  Hout.  R.  li.,  B.  I.,  c.  3,  §§  14,  26.  Butler's 
Horas  Juridicae,  Essay,  Roman  Law.     De  Ferriere  :  Hist,  of  Roman  Law,  ch.  ix. 

*  Heffter :  Europuisches  Volkerrecht,  p.  22,  speaks  of  a  class  or  school  of  publicists 


LAW   OF   NATIONS.  29 

states  (i.  e.  their  municipal,  or,  more  correctly,  their  national 
laws),  whether  arising  from  positive  legislation,  or  from  the 
judgment  of  their  tribunals,  applying  the  law  of  natural  reason, 
may  also  bo  received  by  the  tribunals  of  any  one  state  as  an 
exposition  of  the  law  of  nature,  where  its  own  positive  legisla- 
tion or  judicial  interpretation  of  nktural  law  does  not  afford 
sufficient  guidance.' 

§  3-4.  And  when  any  principles  or  rules  of  action  have  been 
80  long  and  so  generally  recognized  among  many  nations  that 
they  have  been  historically  known  as  the  law  of  nations^  or 
universal  principles  forming  the  subject  of  a  general  or  universal 
jurisprudence,  they  will,  for  the  same  reason,  which  here  applies 
still  more  forcibly,  be  presumed  to  conform  to  natural  reason  or 
natural  law;'  and  be  judicially  received  as  the  jDresumptive  will  of 

who  find  the  natural  law  of  jurisprudence  m  the  expressed  will  of  states,  hy  assuming 
that  they  have  intended  to  do  justice — "  Das  Wollea  der  Gerechtigkeit  in  den  Willen 
der  Nationen  eingeschlossen  betrachten." 

*  Sir  Henry  Finch  :  Treatise  on  the  Common  Law,  p.  6.  Ram:  LegalJudgment, 
p.  69—71,  76.  Marshall :  on  Ins..  Prelim.  Disc.  p.  24.  Reddie's  Inq.  Elem.  «fec.,  p.  196. 
"  Finally,  in  the  exposition  of  common  law,  judges  have  been  accustomed  to  look  to 
the  legal  systems  and  judicial  experience  of  other  nations,  if  not  as  standards,  or  im- 
perative sources  of  the  law,  at  least  as  affording  practical  guides  by  which  they  may 
be  led  to  decide  aright,  &c."  On  this  principle,  the  Roman  law  is  referred  to  in  Eng- 
lish and  American  jurisprudence.  Wood's  Inst.,  Introd :  Spence  :  Equity  Jurisd.  of 
Court  of  Ch.,  voh  i.,  119,  122-3.  5  Bingham,  167.  Long's  Discourses,  passim; 
Reddie's  Hist.  View  of  Marit.  Com.,  pp.  428.  438.  Cushing's  Roman  Law,  §§  250, 
333,  4,  5.  Butler's  Hora?  Juridicae,  p.  60.  So  also  the  Canon  Law,  even  in  Protes- 
tant countries,  Hor.  Jurid.  p.  122. 

In  the  tribunals  of  Continental  Europe,  the  Roman  law  has  so  long  been  received 
on  this  principle,  that  it  is  looked  upon  by  many  of  the  civilians,  as  being  in  and  of 
itself  an  authoritative  exposition  of  natural  reason.  In  their  language — Valet  pro 
ratione,  non  pro  introducto  jure.  Non  habet  vim  legis,  sed  rationis.  Servatur  ubique 
jus  Romanum,  non  ratione  imperii,  sed  rationis  imperio. 

'  Savigny:  Heut.  R  R.,  B.  i.,  c.  3,  §  22.  Grotius  :  B.  et  P.,  Lib.  L,  12,  2.  Cic.  i., 
Tusc.  Ep.,  117 — "In  omni  re  consensio  omnium  gentium  jus  naturse  putanda  est." 

2  Bla  Comm.,  11,  note  by  Christian.  "I  know  no  other  criterion  by  which  we 
can  determine  any  rule  or  obligation  to  be  founded  in  nature  than  by  its  universality,  and 
by  inquiring  whether  it  has  not  in  all  countries  and  ages  been  agreeable  to  the  feelings, 
affections,  and  rea.son  of  mankind." 

Doctor  and  Stiident,  p.  G3.  Doct.  "  Therefore  it  seemeth  that  contracts  be 
grounded  upon  the  law  of  reason,  or  at  least  upon  the  law  that  is  called  jus  rfentivm ; " 
and  p.  176:  Stud.  "First,  it  is  to  be  understood  that  contracts  be  grounded  upon  a 
custom  of  the  realm,  and  by  the  law  that  is  caUed  jus  gentium,  and  not  directly  by  the 
law  of  reason." 

It  is  this  ascertained  standard  which  apparently  Pothier,  in  Treatise  on  Obligations, 
15,  intends  by  "pure  natural  right."  And  see  definition  of  Maxims,  in  Ram  :  Legal 
Judgment,  p.  14,  and  the  citations. 

Whatever  principle  a  tribunal  may  admit  to  be  a  principle  of  universal  jurispru- 
dence must  be  taken  to  be  received  in  the  national  law  which  that  tribunal  is  ap- 
pointed to  administer.     (Suarez :  De  Leg.   et  Deo  Legisl.,  Lib.  ii.,  c.  19,   §  2 — 6.) 


30  LNTVERSAL   JURISPRUDENCE. 

tlie  state :  and  though  these  principles  must  originally  have  acquir- 
ed that  character  of  universality  from  the  independent  legislative 
wills  of  single  states,  yet,  when  they  have  acquired  that  histori- 
cal character,  they  may  be  judicially  received  by  the  tribunals 
of  any  one  state  as  an  independent  indication  of  natural  law, 
presumed,  from  the  fact  of  being  received  in  universal  jurispru- 
dence or  for  universal  jurisprudence,  to  be  adopted  as  a  priori 
principles  by  that  national  power  whose  juridical  will  the  tribu- 
nal is  intended  to  execute. 

§  35.  "WTien  the  natural  law,  or  law  of  natural  reason  has 
thus  been  judicially  interpreted,  and  thus  made  a  part  of  the 
positive  law  of  any  one  state  or  nation,'  (i.  e.  positive  in  respect  to 

The  tribunal  refers  to  the  historical  indicia  of  this  universal  jurisprudence  as  being  one 
,of  the  criteria  of  the  legislative  will  of  the  state,  which  is  to  be  juridically  applied. 
In  the  Roman  jurisprudence,  no  principle  was  ascribed  to  the  ju»  gentium,  which  was 
not  included  in  the  civil  law  (i.  e.,  national  law)  of  Home.  Comp.  Fcelix  :  Droit 
International  Prive,   §  5.     Reddie's  Inq.  El.  <tc ,  p.  26,  and  Beepost  ch.  ii.,  and  iv. 

But  for  an  opposite  theory  of  natunil  law  in  Jurisprudence,  see  HofiFman's  Legal 
Outlines,  sect.  viii. 

Smith's  Merc.  Law,  p.  2.  Speaking  of  the  comparative  utility  of  historical  re- 
searches in  the  law  of  real  estate  and  mercantile  law  : — "  Our  mercantile  law,  on  the 
contrary,  is  wholly  founded  on  considerations  of  utility ;  and  though  many  of  its  rules 
are  derived  from  the  institutions  of  ancient  times  and  distant  countries,  still  is  their 
introduction  into  our  system  owing,  not  to  a  blind  respect  for  their  origin,  but  to  an  en- 
licrhtened  sense  of  their  propriety.  No  one,  unless  acquainted  with  their  feudal  source, 
could  assign  any  reason  for  those  rules  which  respect  fines,  escheats,  or  recoveries; 
but  it  is  not  necessary,  for  the  purpose  of  enabling  the  reader  to  see  the  justice  and 
good  sense  of  the  law  of  general  average,  to  show  him  that  it  formed  part  of  the  mari- 
time code  of  the  ancient  Rhodians.  At  the  same  time,  it  cannot  be  denied  that  the 
history  of  our  commercial  law  is  a  subject  of  great  interest  and  rational  curiosity,  (Sec." 

Here  is  an  example  of  a  very  common  misapprehension  of  the  origin  of  law  in 
general,  and  particularly  of  the  derivation  of  that  branch  called  mercantile  law. 
The  authcr  misapprehends  the  reason  why  the  rule  of  general  average  has  the  force 
of  law  in  cases  of  maritime  losses.  It  is  not  law  because  agreeable  to  justice  and  good 
sense.  If  it  were  not  that  the  maritime  nations  of  Europe  (the  Rhodians  being  the 
first,  perhaps,  as  matter  of  history)  had  actually  given  it  the  binding  force  of  a  law 
within  their  several  jurisdictions,  the  judges  of  English  courts  would  have  had  no  right 
to  apply  it  in  enforcing  a  contribution.  If  the  judges  of  our  courts  should  to-morrow 
be  of  opinion  that  the  rule  hitherto  pursued  is  not  "  agreeable  to  justice  and  good 
sense,"  they  might — according  to  the  author's  argument — decline  to  apply  it  any 
longer. 

And  see  another  instance  in  Abbott  on  Shipping,  Preface  to  the  First  Edition ; 
where  the  author  gives  the  reasons  for  referring  to  the  maritime  code  of  Louis  XIV., 
as  authority  for  English  tribunals ;  and  see  Benedict's  Admiralty  Pr.,  §  5.  Duer,  on 
Insur.,  p.  2.  Enierigon,  c.  i.,  §  6,  note,  by  English  editor.  That  the  Roman  tribunal 
made  judicial  reference  to  the  laws  of  the  Rhodians  on  the  ground  of  its  being  an  exist- 
ing foreign  law,  see  Peckius :  De  Re  Nautica,  Ad  leg.  Rh.  De  Jactu.  Ruhrica. 

'  Vinuius  Comm.,  Lib.  i..  Tit.  2,  §  1.  "  '  Vocaturque  jus  civile.' — In  specie  nimi- 
rum,  nam  jus  civile  sumptum  )iro  eo  jure  quo  in  universum  civitas  utitur,  etiam  jus 
naturale  et  gentium,  quatenus  receptum  est,  coinprehendit ;  eoque  sensu,  obligationes, 
quaj  ex  contractibus  juris  gentium  descendunt,   dicuntur  civiles :  licet  a  legislatore 


UNWRITTEN    LAW.  31 

its  authority,  v.  ante,  §  17,)  it  may  still  be  distinguislied  as  the 
unwritten  law,  the  customary  law,  the  common  law  of  the  land.' 

civili  nihil  habeant  pi-astcr  approbationem,  (§  1,  inf.  de  oblig.)  Hoc  igitur  dicitur 
civile  a  cnusa  efficicnte,  qiu-e  est  voluntas  alicujus  civitatis  ant  ejus  qui  jus  Icgis  ferendsB 
in  ea  hubet,  non  communis  gentium  aut  natnralis  ratio.  Ab  Arirfotele  legitimum 
dicitur:  ^•nlg<)  positivnm." 

'  Kven  nnder  a  written  code,  this  part  of  the  law  must  continue.  See,  as  to  the 
recognition  of  this,  under  the  French  Code,  Savigny ;  Vocation  of  our  Age,  &c. 
Hayward's  Tr.,  p.  90.  Also,  Duponceau  on  Jurisd.,  p.  106.  Reddie's  Inq.  Elem.  &c. 
pp."  190—202.  ' 

In  this  description  of  the  mode  in  which  positive  law  becomes  judicially  ascertained, 
there  is  no  distinction  of  any  part  of  the  law  which  can  be  distinguished  from  the  rest 
as  equift/,  or  as  an  equitable  rule  of  action.  The  distinction  which  exists  in  English  and 
American  jurisprudence  between  laiv  and  equity  is  not  in  the  nature  of  the  inle,.but  in 
tlie  means  by  which  it  is  enforced.  "  In  England  and  America  P]quity,  in  the  techni- 
cal legal  sense  of  that  term,  as  opposed  to  or  distinct  from  the  common  law,  is  in  reality 
as  much  as  the  common  law,  customary  or  judiciary  law ;  a  part  of  the  general  law 
of  the  realm."  Reddie :  Inq.  Elem.,  p.  124.  Blac.  Comm.,  3,  c.  27,  p.  432.  Every 
rule  of  action  which  the  supreme  power  in  England  or  America  enforces  as  law  is 
equally  jural — equally  a  ler  juris.  The  distinction  here  is  one  of  jurisdiction,  or  of 
remedy — the  application  of  the  rule  of  action,  arising  from  the  authority  allowed  to 
judicial  precedent,  and  a  consequence  of  that  supremacy  of  law  as  opposed  to  arbitrary 
discretion,  which  is  a  characteristic  of  "Anglican  liberty.''  (For  the  use  of  this  term 
see  Lieber:  Civil  Liberty  and  Self  Government,  vol.  i.,  ch.  v.)  The  occasion  given  to 
a  common  misconception  of  the  nature  of  positive  law  by  the  existence  of  an  "  Equity 
Jurisprudence,"  may  excuse  an  attempt  to  set  this  forth  in  the  limits  of  a  note. 

The  rule  of  action  to  which  the  state  gives  the  authority  of  law  must  be  enforced 
or  vindicated  by  the  state,  if  it  is  to  be  efficacious  in  accomplishing  the  object  of  the 
state,  i.  e.,  justice.  This  can  only  be  done  by  judicial  remedies.  In  a  state  where 
precedents  liave  great  force  as  an  indication  of  the  will  of  the  supreme  power,  the 
remedy  which  has  been  applied  to  enforce  the  rule  of  action  becomes  itself  a  precedent 
that  is,  it  becomes  a  rule  or  law  of  remedy,  and  thus  the  efficacy  of  a  rule  of  action 
becomes  limited  to  circumstances  in  which  only  a  remedy  has  been  before  applied. 
The  same  effect  would  take  place  if  the  remedial  mode  of  enforcing  the  nile  of  action 
\^ere  prescribed  by  statute. 

The  rule  of  action  will  thus,  in  course  of  time,  fail  in  many  instances  of  its  orio-inal 
intention,  i.  e.,  justice :  because  new  circumstances  of  disobedience  to  the  rule  will 
occur,  differing  from  those  to  which  the  known  law  of  remedy  applies.  The  state 
must,  therefore,  in  order  to  effect  its  intention,  i.  e.,  justice,  either  directly  prescribe  a 
remedy  in  those  new  circumstances,  or  direct  that  its  tribunals  should  go  beyond  pre- 
cedent in  the  If^w  of  remedy,  and  enforce  the  rule  of  action  according  to  its  orii»-inal 
intention.  The  state  may  establish  a  separate  tribunal  with  power  to  carry  out  the  rule 
of  action  beyond  the  remedy  given  by  the  precedents  of  existing  tribunals. 

In  course  of  time,  the  remedy  given  by  the  new  court  becomes  also  a  precedent ; 
and  has  a  law  of  its  own.  There  are  thus  two  systems  of  remedy  intended  to  carry 
out  one  and  the  same  law  of  right.  In  English  and  American  jurisprudence,  this 
double  system  of  remedy  exists.  Equity  is  not  a  different  rule  of  action  from  law ;  it 
is  a  law  of  remedy. 

Papers  read  before  the  Juridical  Society,  Vol.  L,  Part  I.,  1855.  London :  Stevens 
&  Norton,  Inaugural  Address  by  Sir  R.  Bethell,  S.  G.,  M.P.,  p.  3— "And  the  rules 
and  maxims  of  the  common  law  were  so  broad  and  comprehensive,  that  they  admitted 
of  being  made  the  basis  of  an  enlarged  systen\  of  jurisprudence.  A  portion  of  the 
statute  of  Westminster  the  second  (13  Edw.  I.)  was  passed  with  a  view  of  effecting 
this  object,  and  of  expanding  the  maxims  of  tlie  common  law,  so  as  to  render  it  ap- 
plicable to  the  exigencies  of  an  advancing  state  of  society.  For  this  purpose,  new 
writf.  were  ilirected  to  be  framed,  as  new  occasions  for  remedial  justice  presented  them- 
»elves ;  and  if  this  had  been  fully  acted  on,  the  law  of  England  might  have  been  ma- 


W8  COMMOX   LAW. 

It  is  this  which  constitutes  the  common  law  in  the  jurisprudence 
of  England  and  America,  when  distinguished  from  statute  law.' 

§  36.  This  recognition  and  adoption  of  the  natural  law 
occurs  in  international  as  well  as  in  municipal  (national)  law. 

As  was  before  said,  each  nation  being  independent  of  other 
nations,  whatever  is  enforced  by  its  own  tribunals  as  law  rests 
upon  its  own  authority,  or  is  identified,  in  respect  to  its  author- 
ity, with  the  municipal  law  of  that  state.  Intel-national  law, 
though  diflering  from  municipal  law  in  the  objects  or  relations 
which  it  affects,  does  not,  as  administered  by  its  tribunals,  rest 
on  any  other  authority  than  the  state  itself:  it  is  then  a  part  of 
the  municipal  (national)  law ;  being  then  distinguished  from  other 
portions  of  the  municipal  law  only  by  its  application  to  persons, 
or  as  one  personal  law  is  distinguished  from  another.'  What- 
ever rules  the  tribunal  may  administer  as  international  law,  are 

tnred  into  a  uniform  and  comprehensive  system.  For  it  was  justly  obser\-eii  by  one 
of  the  judges  in  the  reign  of  Henry  the  Sixth,  that  if  actions  on  the  case  had  been 
allowed  by  courts  of  law  as  often  as  occasion  required,  the  writ  of  subpoena  would 
have  been  unnecessary  ;  or,  in  other  words,  there  would  have  been  no  distinctions  be- 
tween courts  of  law  and  courts  of  equity,  and  the  whole  of  the  present  jurisdiction  of  the 
court  of  chancery,  would  have  been  part  of  the  ordinary  jurisdiction  of  courts  of  law." 

See  on  this  point.  Story  ;  Equity  Jurisprudence,  vol.  I.  Ba^-on  :  Advanc.  Learn., 
B.  viii.,  c.  3,  of  Univ.  Just.  Aphorism?,  22  to  46.  Ram  on  Legal  Judgment,  ch.  ii., 
and  authorities;  also.  Am.  Jurist,  vol  xvii.,  p.  2.53,  on  reform  in  remedial  law. 
D'Aguesseau :  CEuvres,  Tom.  i.,  p.  209.  Lessee  of  Livingston  v.  Moore  and  others, 
7  Peter's  R.,  p.  547      Butler's  Horae  Juridicas,  p  44 — 46. 

In  the  states  of  Continental  Europe,  where  the  administration  of  justice  is  on  the 
model  of  the  Roman  law,  judicial  tribunals  are  less  fettered  by  judicial  precedent,  and 
have  always  had  a  greater  latitude  in  applying  the  rule  of  action.  The  judicial 
officer  has  in  practice  a  large  share  of  administrative  power.  His  power  to  make  law 
for  future  cases  is  less  than  that  of  judges  under  the  English  system  ;  but  his  autono- 
mous or  discretionary  power  over  the  case  in  hand  is  far  greater.  Hence  the  rights 
of  individuals  depend  less  on  pre-existent  law,  and  more  on  arbitrary  discretion. 

'  Sir  H.  Finch  :  Treatise,  p.  74.  Sims'  Case,  7  Cushing  R ,  p.  313.  Shaw,  C.  J., 
nsinw  the  term  posUive  law : — "  and  this  may  be  mere  customary  law,  as  well  as  the 
enactment  of  a  statute.  The  term  '  positive  law,'  in  this  sense,  may  be  understood  to 
desi<Tnate  those  rules  established  by  long  and  tacit  acquiescence,  or  by  the  legislative 
act  of  any  state,  and  which  derive  their  force  and  effect,  as  law  from  such  acquies- 
cence and  legislative  enactment,  and  are  acted  upon  as  such,  whether  conformable  to 
the  dictates  of  natural  justice  or  otherwise."     And  comp.   Neal  v.  Farmer,  9  Georgia 

R.,  58L 

Ram,  on  Judgment,  ch.  ii.  Savigny :  Heut.  R.  R.,  §  18.  Rcddie'a  Inq.  Elem. 
&C.  p.  238 — 252, — a  description  of  the  establishment  of  municipal  (national)  law, 
abridged  from  Savigny. 

Bentham  :  Princ.  Morals  and  Legisl.,  pref.,  xiii.  "  Common  law,  as  it  styles  itself 
in  Eno-laud  ;  judiciary  law,  as  it  might  more  aptly  be  8t\-led  everywhere,"  itc.  Com- 
pare Eucy.  Am.,  vol.  vii..  Appendix,  Law,  Ac,  by  Story. 

Co.  Lit.,  fo.  11.,  a.  An  enumeration  of  the  "  proofs  and  arguments  of  the  common 
law  "  drawn  from  twenty  several  fountains  or  places  ;  common  law  being  taken  in  the 
limited  sense ;  because  in  the  same  place  commium  lex  AnglicR  is  included  en  la  ley. 

^  SeejMM^,  ^  53. 


INTERNATIONAL    LAW — HOW    DERIVED.  33 

derived  by  it  in  the  same  manner  as  municipal  law  ;  viz.  firstly, 
from  the  positive  legislation  of  the  state  in  reference  to  relations 
which  are  international  in  their  character;  that  is,  relations 
arising  out  of  the  existence  of  foreign  states,  and  from  the 
recognition  of  their  authority  to  give  laws  and  hold  jurisdiction 
over  persons  and  things.  Such  legislation  must  be  recognized 
by  the  ti'ibunal  on  the  authority  of  the  state  alone  to  which  it 
belongs,  whether  it  be  made  by  the  state  singly,  or  jointly  with 
other  states,  in  the  form  of  treaties  and  agreements.  Secondly : 
from  the  recognition  of  natural  law  by  such  criteria  or  exposi- 
tions of  that  law,  applied  to  the  same  international  relations,  as 
may  be  supposed  to  be  adopted  by  the  state  to  which  the  tribunal 
belongs,  and  whose  will  it  executes  in  the  administration  of  in- 
ternational law  as  well  as  of  the  municipal :  and  these  are  the 
same  as  are  adopted  in  ascertaining  the  municipal  law — deci- 
sions of  preceding  tribunals  having  the  same  national  authority, 
the  writings  of  private  jurists,  and  the  laws  and  decisions  and 
customs  of  all  other  states ; '  comprehending  herein,  also,  the 
recognition  of  universal  jurisprudence,  the  science  of  a  law  of 
nations  historically  known :  which  recognition  by  judicial  tri- 
bunals is  particularly  manifest  and  necessary  in  the  administra- 
tion of  private  international  law,  as  will  be  shown  in  the  follow- 
ing chapter.  International  law,  thus  applied  by  the  judicial 
tribunals  of  any  state,  is  only  to  be  distinguished  from  the 
municipal  law  of  that  state  in  the  nature  of  the  relations  which 
it  affects  ;  it  is  identified  with  it  in  respect  to  its  authority  over 
all  persons  within  the  jurisdiction  of  the  state.* 

'  Grotins  :  B.  et  P.  Proleg.,  §  40,  Lib.  I.,  c.  i.,  §  12,  U.  I.  Kent's  Comm.,  18, 
19.  Reddie :  Hist.  View  L.  of  Marit.  Com.,  26,  27,  426,  429.  Hoffman's  Course  of 
Legal  Study,  vol,  i.,  p.  415-16.  Burge :  Col.  and  For.  Law,  vol.  i.,  xvi.  Ram,  on 
Legal  Judgment,  p.  94.     Phillimore  ;  Internat.  L.,  p.  Gl. 

It  is  only  civilized  nations,  or  those  of  a  certain  kind  of  culture,  that  are  thus 
recognized  by  their  several  tribunals  as  the  sources  of  universal  jurisprudence.  See 
Selden  :  De  J.  Nat.  <tc.,  Lib.  L,  c.  vi.,  who  designates  them  as  '■^  gentes  moratiores,"  in 
the  language  of  Grotius:  B.  et  P.,  Lib.  i.,  12,  2.  Phillimore :  Int.  L.,  c.  iii.  Heffter 
designates  his  work — Das  Heutige  Enropdische  Volkerrecht. 

This  discrimination  between  different  nations  as  sources  of  jural  rules,  is  not  an  a 
priori  assumption  by  the  tribunal  making  it.  It  is  rather  a  part  of  the  customary  law 
of  the  state  whose  will  the  tribvmal  is  bound  to  apply.  This  act  of  a  judicial  tribunal 
must  not  be  confounded  with  the  sovereign  legislative  act  of  a  state  in  adopting  a 
foreign  law,  as  when  in  the  XII.  tables,  the  Romans  adopted  some  of  the  laws  of  Greece. 
Dig.  L.  I.,  Tit.  2,  c.  2,  §  4  ;  "  petereutur  leges  a  Grsecis  civitatibus." 

*  This  point  is  more  fully  considered  in  the  second  chapter. 


34:  NATUBE   OF   ITS    AUTHORITY. 

§  37.  From  the  conditions  necessary  to  the  existence  of  a 
relation  between  states,  or  from  the  fact  that  though  composed 
of  natural  persons,  each  subject  to  the  power  of  society,  they 
have  a  distinct  existence  and  power  of  action  in  respect  to  each 
other,  as  well  as  in  respect  to  private  individuals,  any  rule  which 
would  decide  on  tlie  relations  of  states,  as  such,  towards  each 
other,  and  maintain  their  correlative  rights  and  duties,  would 
be  an  international  law.  But  from  the  nature  of  states  and 
their  mutual  independence,  there  is  no  such  rule,  taking  the 
word  law  in  the  strict  sense  ;  and  the  application  of  such  a  rule 
or  law  could  not  be  made  by  the  judicial  tribunals  of  any  state 
or  nation.  A  coercive  determination  of  these  rights  and  obliga- 
tions can  be  expected  only  from  the  autonomic  force  of  the 
parties  to  whom  this  law  may  attribute  them. 

But  from  the  reciprocal  assertion  and  acknowledgment 
which  all  states  or  nations  have  in  fact  made  of  principles  of 
natural  reason,  or  from  that  couree  of  practice  which  is  sup- 
posed to  be  founded  on  a  reciprocal  reference  to  such  principles 
in  their  relations  with  each  other,  and  from  the  consideration 
actually  allowed  to  the  ethical  views  of  some  private  authors  in 
reference  to  such  national  practice,  an  exposition  of  natural  law 
has  arisen,  which  corresponds  with  the  common  law,  or  judicially 
ascertained  municipal  (national)  law  of  any  one  state,  having  in 
practice  the  character  of  a  rule  of  action  for  states  ;  determin- 
ing their  relations  to  each  other,  and  the  correlative  rights  and 
obligations  of  each,  though  there  is  no  tribunal  to  decide  be- 
tween them  in  its  application  ; — that  is,  no  tribunal  which  can 
enforce  the  rights  and  obligations,  arising  under  it,  in  particular 
cases.* 

§  38.  Rules  thus  recognized  form  a  part  of  universal  juris- 
prudence, (Jaw  of  7iations  in  that  sense,)  to  which  states  or  nations 
reciprocally  refer  as  to  an  international  law  having  an  existence 

'  Even  Mr.  Reddie,  who  distinguishes  the  existence  of  a  universal  jurisprudence 
operating  as  part  of  the  coercive  private  law  of  each  several  nation,  seems  to  hold  that 
there  is  a  law  derived  in  the  same  manner,  and  operating  on  the  state  as  a  political 
person,  having  the  same  kind  of  authority.  See  Inquiries  Elem.  &c.,  2d  ed.,  p.  456, 
and  Inq.  in  International  Law,  2d  ed.,  43!),  456. 

Wheaton,  in  his  El.  of  International  Law,  g  10,  cites  HeflFter  as  taking  the  same 
view;  but  in  the  last  ed.  of  Das  Europaische  Volkerrecht  der  Gegenwart,  Berlin,  1855, 
p.  2,  n.  2,  the  latter  author  says  that  Mr.  Wheaton  has  misconceived  his  meaning. 


LAW    OF   NATIONS PUBLIC    LAW.  35 

independent  of  their  several  juridical  assent.  In  its  origin,  this 
law,  of  which  nations  are  then  taken  to  be  the  subjects,  is  iden- 
tified with  the  law  applied  by  judicial  tribunals  as  an  interpre- 
tation of  the  law  of  natural  reason  between  private  persons,  in 
both  municipal  (internal)  and  international  law, — the  law  of 
natioth9,  in  the  sense  of  private  law  judicially  recognised  because 
existing  among  all  nations.  And  though  it  is  a  law  for  those 
nations  only  in  the  imperfect  sense  of  the  word,  it  may  be  called 
a  part  of  positive  law,  or  be  included  in  jurisprudence — the 
science  of  positive  law,  when  the  term  positive  is  used  not  to 
indicate  the  coercive  quality,  but  the  quality  of  being  an  ascer- 
tained rule, — a  rule  having  an  ohjective  existence  independently 
of  the  subjective  conception  of  any  one  state  or  nation,  or  of  any 
private  person  or  persons  ;  a  rule  which  is  not  necessarily  the 
true  law  of  nature  or  of  natural  right,  but  that  which  many 
states  have  agreed  in  applying  for  such.'  As  such  it  is  referred 
to  by  sovereign  nations  for  public  law,  and  is  enforced  by  judi- 
cial tribunals  for  private  law,  being  binding  on  those  tribunals 
nntil  contravened  or  disallowed  by  the  several  juridical  action 
of  the  states  to  which  they  belong,  or  for  which  they  exercise 
the  judicial  function. 

§  39.  It  is  always  consistent  for  sovereign  powers  to  recon- 
sider their  own  previous  judgment  in  respect  to  any  application 
of  the  law  of  nature.  This  may  be  done  by  single  sovereignties 
in  either  division  of  the  municipal  (internal)  law,  constituting, 
in  private  law,  social  change  or  reform,'  and  in  public  law,  civil 
or  political  change  or  revolution  :  in  either  of  which  forms  the 

'  The  controversial  writings  of  publicists  on  these  questions  of  definition  are  noted 
in  all  the  treatises  on  international  public  law.  Though  it  may  be  difficult  to  estimate 
the  actual  influence  of  professed  metaphysicians  on  these  subjects,  (compare  Wheaton : 
Hist,  of  the  Law  of  Nations,  p.  749,  and  Heflfter :  Europ.  Volkerr.,  §  9,)  it  is  probable 
that  the  distinctions  made  by  Kant,  Fichte  and  Hegel,  in  their  juristical  writings,  have 
led  to  a  greater  accuracy  of  expression  on  these  topics.  It  is  worthy  of  notice  that 
the  positions  taken  by  some  later  authors  correspond  in  a  remarkable  degree  with  those 
of  Suarez  the  Jesuit,  one  of  the  earliest  writers.  That  attention  to  them  has  been  re- 
newed is  shown  by  the  proposal  of  M.  Greuse,  of  Brussels,  to  republish  the  entire  works 
of  Suarez. 

"  B.  Constant:  ("ours  de  Politique,  CEuvres,  Tom.  i.,  p.  174,  n.  "  Souvent  les 
d6positair(s  du  pouvoir  sont  partis  du  principe  que  la  justice  existait  avant  les  lois, 
pour  soumettre  les  individus  h  des  lois  rdtroactives,  ou  pour  les  priver  du  benefice  des 
lois  existantes  ;  couvrant  de  la  sorte  d'un  feint  respect  pour  la  justice  la  plus  rdvoltante 
des  iniquit^s.  Taut  il  importe  sur  les  objets  de  ce  genre,  de  se  garder  d'axiomes  non 
definis." 


36  LAW    OF   NATIONS — MUTABLE. 

change  may  be  either  gradual  or  sudden,  peaceful  or  vio- 
lent.' 

Or  this  reconsideration  may  be  made  by  sovereign  national 
powers  in  international  law  ;  either  in  that  law  which  each  state 
applies  by  its  own  tribunals  to  persons  in  international  relations, 
for  the  private  international  law,  or  those  reciprocal  rules  of  in- 
tercourse, which,  as  the  parties  to  be  governed  by  the  rule,  they 
may  mutually  adopt  for  public  international  law,  (in  the  imper- 
fect sense  of  a  law.)  Both  which  divisions  of  international  law 
have  been  constantly  changed  and  extended  during  the  time  of 
recorded  history,  according  to  altered  views  of  natural  equity. 

Universal  jurisprudence  or  the  law  of  natiofis,  whether  taken 
to  be  a  rule  determining  the  relations  of  states  or  of  private 
persons,  being  thus  a  consequence  of  the  juridical  action  of 
states  or  nations,  is  always  liable  to  changes,  which  (from  the 
ajp7'iori  principle  before  stated,  viz.  that  the  legislative  action 
of  states  is  always  juridical  or  jural,  that  is  conformed  to  natural 
reason)  must  be  taken  to  be  progress  or  improvement." 

§  40.  Under  the  preceding  view  of  the  nature  and  extent  of 
the  law,  every  action  and  relation  which  is  the  subject  of  juris- 
prudence may  be  taken  to  be  determined  either  by  international 
or  by  municipal  (national)  law. 

Tlie  rights  of  persons,  though  all  relative  in  respect  to  other 
persons  owing  or  bound  to  corresponding  obligations,  may  be 
distinguished  as  rights  in  correspondence  with  obligations  on  the 
part  of  the  community  at  large,  or  as  rights  coiTcspondent  to 
obligations  on  the  part  of  particular  persons.* 

'  Revolution  is  resistance  against  the  legal  possessor  of  sovereign  power.  But  it 
is  founded  on  the  assertion  of  a  share  of  sovereignty,  or  right  of  supreme  control,  in  the 
revolutionist,  (a  right  above  law,)  and  In  case  of  success,  the  change,  whether  ethically 
rightful  or  not,  becomes  lawful,  by  being  the  act  of  the  actual  sovereign. 

'  Suarez :  de  Legib.  et  Deo  LegisL,  ch.  20,  §  6,  8.  Doctor  and  Student,  p.  63 : 
"For  though  the  law  caWed  jus  ffentium  be  much  necessary  for  the  people,  jet  it  may 
be  changed.'' 

VVhewell ;  El.  Mor.  and  Pol.,  §  1143.  "  The  law  of  nations,  including  in  this  inter- 
national law,  is  subject  to  the  conditions  of  which  we  have  already  spoken  as  belong- 
ing to  the  law  of  any  one  nation.  It  is  capable  of  progressive  standards  :  it  is  fixed 
for  a  given  time,  and  obligatory  while  it  is  fixed  :  but  it  must  acknowledge  the  au- 
thority of  morality,  and  must,  in  order  to  conform  to  the  m^al  nature  of  man,  become 
constantly  more  and  more  moral.  The  progress  of  international  law  in  this  respect  is 
more  slow  and  irregular  than  that  of  a  well  guided  national  law,  &c."  And  compare 
Savigny's  Vocation  of  our  age  for  Legislation  and  Jurisprudence,  Hayward's  Transla- 
tion, p.  134. 

'  Reddie's  Inquiries  Elem.  &c.,  p.  171.     See  citation,  an/c,  page  20,  note:  "But 


INDIVIDUAL   AND    RELATIVE   EIOIITS.  37 

Tlie  first  class  may  be  called  individual  rights,  as  belonging 
to  persons  each  necessarily  or  absolutely  recognized  before  the 
law  as  individual  members  of  society.  Tlie  individual  rio-hts  of 
pei-sons,  (called  by  Blackstone,  ahsohite,)  have  ordinarily  been 
taken  to  be  three,  denominated  :  the  right  of  personal  liberty  ; 
the  right  of  personal  security  ;  and  the  right  of  property.* 

The  second  class  may  be  called  relative  rights,  as  belonging 
to  persons  in  consequence  of  a  relation  established  between 
them  and  others,  not  necessarily  arising  from  their  being  indi- 
vidual members  of  the  community. 

These  relative  rights  have  been  classed  as  the  rights  of  parent 
and  child  ;  of  husband  and  wife ;  of  master  and  servant. 

Both  individual  and  relative  rights,  considered  with  reference 
to  the  persons  to  whom  they  are  attributed,  may  be  called  pri- 
vate rights  ;  while,  in  view  of  their  existence  in  relation  to  the 
supreme  power  of  society  or  the  state,  and  the  persons  of  whom 
it  is  composed,  they  may  also  be  termed  civil  and  public  rights. 
§  41.  From  the  nature  of  law,  in  its  ordinary  sense,  includ- 
ing the  idea  of  inferiority  and  subjection,  corresponding  with 
superiority  and  authority,  the  term  a  right  implies  a  liherty  in 
the  person  to  whom  the  right  is  attributed ;  jus  est  facultas 
agendi.  The  idea  oi  freedom  associated  with  the  idea  of  law, 
or  legal  fre'edom,  as  the  condition  of  a  person,  consists  in  the 

though  rights  and  obligations  are  in  reality  and  correctly,  the  relations  of  individual 
persons  to  other  individuals,  they  are  plainly  correlative  terms.  And  it  is  manifest  in 
*^^. ''I?*  P^'*'^,^' "^**  they  may  e*:ist  between  any  one  indi%'idual,  or  a  definite  number 
of  individuals,  and  all  other  individuals  generaUy  and  indefinitely,  the  rio-ht  beine 
positive  against  all  others,  adcersus  omnes,  and  the  obligation  on  all  others  bein<r  only 
negative.  Or  they  may  exist  between  particular  individuals,  and  instead  ofbeiug 
adversus  omy,  directed  against  all  other  indinduals  indefinitely,  may  exist  or  be 
directed  only  against  one  or  more  particular  individuals,  who  are  under  corresponding 
obligation,  not  merely  negative  not  to  interfere,  but  positive  to  do,  or  bear,  or  sufiFe? 
something  for  the  behoof  of  the  person  having  the  right."  And  see  Austin  :  Prov  of 
Jurisp  Appendix,  x.xiv  xxv.,  definitions  of  rights  in  rem.  and  in  personam.  Also, 
Mackeldey  :  Compend.  Mod.  Civil  Law,  Introd.,  g§  15,  16. 

'  Dr:  Lieber  denominates  such  rights /^wwoT-fZi'o^'.  Pol.  Eth  ,  vol  i  p  218  Civil 
Lib.  and  Self  Gov.,  vol.  i.,  p.  52.  The  terms  absolute  or  primordial  convey  the  idea 
of  rights  anterior  or  independent  of  positive  law  as  herein  before  defined  :  ri<Thts  exist- 
ing under  some  independent  law  of  nature:  which,  as  before  shown,  has  nonexistence, 
—no  judicial  recognition  in  jurisprudence,  as  independent  of  positive  law.  rrimordial 
IS  a  term  liable  to  the  same  objections  which  Dr.  Lieber  advances  an-ainst  the  term 
absolute  in  the  place  refeiTed  to.  He  also  uses  the  term  indiridnal  as  a  synonym. 
Y-  t",  vol.  1.,  p.  402  :  "  We  speak  of  individuul  primordial  rights."  DroUs  individuelt 
IS  a  common  term  in  this  sense  with  the  French  jurists.  Alirena:  Naturrecht,  p.  160. 
speaks  oUnduidueUen  HecAie.  ,  r      w. 


38  FREEDOM   OR   LIBERTY. 

possession  of  legal  rights  of  action,  or  in  that  liberty  which  is 
allowed  by  law. 

"Where  liberty  is  attributed  to  a  being  existing  under  condi- 
tions over  which  it  has  no  control,  it  cannot  be  defined  except 
with  reference  to  those  conditions,  or  laws  in  the  secondary 
sense  of  the  word  law.  And  when  attributed  to  a  moral  being 
governed  by  rules  of  action,  (laws  in  the  primary  sense,)  liberty 
can  be  defined  only  by  stating  the  source,  authority,  and  extent 
of  those  laws,  as  well  as  their  object,  or  the  direct  eflfect  of  their 
injunctions. 

§  42.  The  definition  of  liberty,  when  attributed  to  individual 
members  of  a  state  or  political  body,  has  been  a  problem  for 
publicists.'  Tliere  are  evidently  two  modes  in  M'hich  such 
liberty  may  be  conceived  of.  In  one,  liberty  is  determined  by 
ethical  considerations,  or  as  that  freedom  of  action  which  ought 
— in  accordance  with  the  nature  of  man — to  be  the  efi'ect  of  the 
laws  of  a  political  state.  This  is  a  siihjective  apprehension  of 
liberty,  because  the  moral  judgment  of  the  concipient  is  the 
highest  criterion  of  its  real  nature,  and  the  test  of  its  very 
existence. 

In  the  alternative  mode  of  conception,  liberty  is  the  object 
of  a  legal  apprehension.  That  is,  it  is  viewed  as  that  actual 
degree  of  freedom  which  exists,  oris  allowed  to  the 'individual 
member  of  the  civil  state  under  the  power  of  society  and  the 
unalterable  conditions  of  human  existence.  Its  conception  is 
entirely  independent  of  the  moral  sense*  of  the  concipient,  and 
may  be  said  to  be  the  objective  apprehension. 

Liberty,  in  the  first  named  aspect,  is  a  subject  of  that  science 
which  relates  to  that  necessary  condition  of  man's  existence  as 
a  moral  being  ;  and  belongs  to  the  province  of  political  ethics. 
It  is  in  the  last  described  point  of  view  that  it  becomes  a  topic 
of  jurisprudence,  in  the  sense  herein  before  given  to  that  term, 
viz.  the  science  of  positive  law.  Ko  definition  of  libert}',  when 
thus  regarded,  can  be  given  but  by  defining  it  as  the  efi'ect  of 
the  law  of  some  state  or  nation,  and  without  describing  the 
law  of  some  state  or  independent  political  society." 

'  See  Lieber:  On  Civil  Liberty  and  Self  Government,  ch.  ii.,  and  the  citations. 

'  Compare  Dr.  Lieber :  Civil  Liberty  and  Self  Government,  ch.  iv.,  v.     Therefore, 


BONDAGE   OF   LEGAL   PERSONS.  39 

§  43.  Since  the  nature  of  a  legal  right  implies  a  duty  or  ob- 
ligation as  a  correspondent  constituent  of  some  relation  between 
persons,  that  obligation  or  duty  may  be  considered  as  the  op- 
posite of  a  liberty  :  or,  the  duties  made  obligatory  upon  a  person 
by  law  may  be  said  to  constitute  a  condition  opposed  to  legal 
freedom.  As  the  condition  of  freedom  in  this  sense  is  indefinite, 
and  is  determined  according  to  the  nature  and  extent  of  the  rights 
given  by  the  law,  so  is  all  that  is  in  this  manner  opposed  to  it 
determined  by  the  nature  and  extent  of  the  obligations  or  duties 
imposed  by  the  law. 

When  a  state  of  freedom,  in  this  sense,  is  attributed  to  any 
subject,  a  power  of  choice  and  action  is,  by  the  signification  of 
the  words,  necessarily  supposed  to  exist  in  that  subject,  in  the 
absence  of  law  limiting  or  defining  that '  freedom.  According 
to  the  use  of  words,  freedom  cannot  be  predicated  of  anything 
which  is  without  powers  of  choice  and  action.  Therefore,  ac- 
cording to  the  definition  of  2i person  in  jurisprudence,  {ante  §  21,) 
freedom  can  be  attributed  to  jpersons  only.  The  same  may  be 
said  of  any  state  or  condition  opposite  to  freedom  ;  qtAj jpersons^ 
as  having  the  power  of  choice  and  action  in  the  absence  of 
restraint,  can  be  said  to  be  'bound  by  law,  (in  the  primary 
sense ;)  and,  therefore,  bondage^  as  expressing  a  condition  oppo- 
site to  freedom,  can  be  properly  ascribed  io  persons  only. 

§  M.  The  individual  and  relative  rights  of  persons  are  capa- 
ble, under  the  supreme  power  of  the  state,  of  such  various 
modification  between  the  extremes  which  constitute  on  the  one 
hand  a  state  of  license,  and  on  the  other,  the  extremity  of  coer- 
cion which  is  physically  possible,  that  the  laws  of  freedom  and 
bondage,  as  constituting  opposite  conditions  of  legal  persons, 
might  be  considered  under  the  description  of  these  various  rights 
and  their  corresponding  obligations,  as  they  exist  under  munici- 
pal (national)  and  international  law. 

a  presumption  in  favor  of  the  personal  liberty  of  any  private  person  is  not  a  necessary 
principle  in  jurisprudence.  There  may  be  in  some  states  a  constant  legal  presumption 
against  the  freedom  of  certain  pei-sons,  and  hence  a  presumption  that  some  otlier  per- 
son must  have  over  them  a  right  of  control.  The  law,  in  resting  on  the  authority  of 
civil  society,  can  derive  no  rules  of  action,  and  therefore  no  rights  or  obligations,  from 
that  state  of  nature  which  some  authors  have  supposed  to  have  existed  anterior  to  civil 
society  or  the  state.  The  natural  freedom  of  man  is  known  in  jurisprudence  only  so 
far  as  it  is  the  result  either  of  hiws  in  the  secondary  sense — conditions  of  things,  or 
has  been  acknowledged  and  realized  in  the  rules  of  natural  reason  which  are  identified 
with  positive  law. 


40  CHATTEL   CONDITION   OF   NATURAL   PERSONS. 

But  since  the  non-possession  of  legal  rights  may  be  said  to  be 
the  opposite  of  freedom,  and  since  things,  in  the  idea  of  the  law 
(being  only  the  objects  of  action,  and  never  the  subjects  of 
rights)  can  have  no  legal  riglits,  every  object  Mhich  the  law  con- 
templates as  a  thing,  may,  by  a  somewhat  loose  use  of  language, 
be  said  to  be  in  a  legal  condition  opposed  in  the  farthest  degree 
to  freedom.  Positive  law  being  necessarily  miderstood  to  be  a 
rule  of  action  for  mankind,'  it  might  from  this  alone  be  inferred 
that  the  law  attributes  capacity  for  choice  and  action,  or  person- 
ality, to  all  men  ;  or  that  tlie  IcgaF  personality  of  all  men  is  to 
be  taken  as  a  necessary  or  natural  first  principle  of  all  law  rest-' 
ing  on  the  authority  of  society,  or  of  the  states  holding  the  ])0W- 
ers  of  society.  But  in  accordance  with  the  proposition  that  there 
is  no  other  legal  criterion  of  natural  law  than  such  as  is  sanc- 
tioned or  adopted  by  the  state,  there  is  room  in  the  jurispru- 
dence of  every  country  for  an  inquiry  into  the  absoluteness  or 
extent  of  such  legal  recognition  of  mankind  as  persons,"  or  for 
the  question,  whether  some  part  of  mankind  may  be'  legally* 
wanting  in  the  character  of  personality,  distinguishing  them 
from  things,  and  may  be  in  legal  relations,  things  ; — only  the 

objects  of  the  rights  of  persons,  and  never  the  subjects  of  rights.' 

• 

'  Dig.  L.  I.  Tit.  5,  §  2.  Quum  igitur  oinne  jus  hominum  cansa  constihitum  sit, — 
Inst.  L.  I.  Tit,  2.  §  12-.— paruinest  jus  nosse,  si  persomc,  quanim  causa  constitutum  est, 
ignorentur. 

*  Tlubaut  :  Syst.  d.  Pand.  Rcchts. — \o\.  i.  §  118.  Tr  :  "  The  third  topic  which  is 
to  be  considered  in  relation  to  rights  and  obligations  is  their  subject,  that  is  to  say,  the 
person  who  has  the  capacity  or  obligation.  And  here  the  question  dii-ectly  arises:  who 
can  be  the  subject  of  a  right, — either  in  respect  to  the  nature  of  the  thing  (natural  ca- 
pacity for  rights)  or  in  respect  to  the  precepts  of  positive  law,  (civil  capacity  for  rights.) 
He  who  in  any  respect  is  considered  as  the  subject  of  a  right,  is  to  that  extent  denom- 
inated a  joerson  ;  particularly  considered  as  the  subject  of  civil  rights.  On  the  other 
hand,  that  is  called  a  tkiiiff  which  constitutes  the  opposite  of  a  person  :  civil  capacity  for 
rights  is  what  the  Romans  call  status  or  ca/mt.  The  moderns  give  it  the  name  of  status 
civilis.  as  consisting  of  all  the  capacities  attributed  by  the  laws,  to  which  particular 
rights  are  attached ;  the  natural  capacity  for  rights  on  the  other  hand,  as  consisting  of 
physical  capacities  which  are  followed  by  particiilar  relations,  is  called  by  them  status 
naturalis."  Compare  Lindley's  Transl.  ^  101.  Mackeldey's  Comp.  by  Kaufmami,  § 
llfi,  117.     Ahrens'  Xaturrecht,  p.  83,  84,  also  published  in  French. 

Falck:  Jurist.  Encyc.  §  27.  French  Tr.  "  On  pent  considerer  comme  une  introduc- 
tion generale  la  theorie  du  Status,  ou  Ton  resout  la  question  de  savoir  jusqu'ii  quel  point 
I'etat  a  reconnu  la  capacite  juridique  aux  i'tres  humains  qui  vivent  sous  sa  protection, 
de  maniere  qu'en  leur  en  supposant  la  possibilite  physique,  ils  puissent  entrer  dans  cer- 
tains rapports  de  droit  et  y  persistcr.  Ce  point  etait  beaucoup  plus  important  dans  I'an- 
cien  droit,  que  dans  le  droit  actuel ;  car  nous  ne  coimaissons  guere  aujourd'hui  d'autres 
causes  d'exclusious  des  rapports  juridiques,  que  celles  qui  les  rendent  physiquement 
impossibles." 

^  In  the  Roman  law  the  condition  of  all  natural  persons  as  subjects  of  law  was  de- 


CHATTEL   SLAVERY.  41 

If  tlie  law  can  be  supposed  to  attribute  the  legal  character  of 
a  thing  to  tliat  which  has  a  natural  capacity  for  choice  and  ac- 
tion, or  which  is  a  natural  jperscm^  the  legal  condition  of  that 
natural  person  would  not  be  explained  by  the  term  hojidage  as 
above  defined ;  since  that  presupposes  a  recognition  by  the  law 
of  a  capacity  to  act  or  not  to  act,  or  of  the  personality  of  that 
which  is  legally  hound.  Tliat  condition  would  be  legally  inclu- 
ded under  the  law  of  things,  or  of  the  rights  of  persons  in  re- 
spect to  things :  property,  or  possession  and  control  by  legal 
persons,  being  the  essential  legal  attribute  of  a  natural  jjerson 
who  can  appear  in  legal  relations  only  as  the  object  of  rights, 
while  the  attribution  of  legal  personality,  by  implying  capacity 
for  choice  and  action,  recognizes  a  legal  capacity  for  individual 
and  relative  rights,  and  makes  every  condition  of  the  j)erson 
which  may  be  opposed  to  freedom,  to  consist  in  obligations 
under  relations  to  other  persons.  But  where  the  law  admits  the 
contradiction  of  recognizing  a  natural  caj)acity  for  choice  and 
action,  and  at  the  same  time  attributing  that  incapacity  for  rights 
which  belongs  to  the  nature  of  a  thing,  this  species  of  bondage 
would  require  a  legal  name  distinguishing  the  subject  from  natm-al 
things  and  from  legal  persons.'  Under  systems  of  law  where 
this  anomalous  condition  has  been  known,  it  has  been  included 
under  the  general  terms  bondage  or  slavery,  and  is  sometimes 
more   definitively  known  as  chattel  bondage  or  chattel  slavery.* 

scribed  under  the  name  of  caput  or  status,  and  divided  into  three  parts  j  or  rather  de- 
scribed as  existing  under  either  one,  two,  or  three  conditions,  each  called  sta/us  or  caput, 
tinder  each  of  which  the  condition  of  I  he  individual  might  be  varioiisly  affected.  These 
were  called  libert'is,  cicitas,  familia.  The  law  of  the  status  libertatis  however  comprised 
the  distiuction  between  a  personal  condition  as  liber  or  freeman  and  the  chattel  condition 
of  a  servus  or  slave  ;  and  the  law  of  the  status,  in  its  most  general  sense,  may  be  taken 
as  the  Roman  phrase  for  the  law  of  freedom  and  of  bondage.  For  the  sake  of  a  con- 
venient term,  it  will  be  here  sometimes  used  to  designate  the  legal  condition  of  a  private 
person,  considered  under  the  American  law  affecting  personal  condition  in  these  re- 
spects. See  Thibaut,  by  Lindley,  §  106.  Mackeldey,  by  Kaufman,  §  119,  120,  121. 
■  Xovel  Theod.,  Tit.  17,  "  Servos .  .  .  quasi  nee  personam  habentes." 
2  Austin  :  Prov.  Jur.,  p.  271),  note.  "  From  the  assumed  inconsistency  of  slavery 
with  the  law  of  God,  or  nature,  it  is  not  unfrequently  inferred  by  fanatical  enemies  of 
the  institution  that  the  master  has  no  right,  or  cannot  have  a  right,  to  the  slave.  If 
they  said  that  his  right  is  pernicious,  and  that  therefore  he  ought  not  to  have  it,  they 
would  speak  to  the  purpose.  But  to  dispute  the  existence,  or  the  possibility  of  the 
right,  is  to  talk  absurdly.  For  in  every  age,  and  in  almost  every  nation,  the  right  has 
been  given  by  positive  law;  whilst  that  pernicious  disposition  of  positive  law  has  been 
backed  by  the  positive  morality  of  the  free,  or  master  classes."  "  Tositive  law, '  ac- 
cording to  this  author's  definition,  which  includes  every  rule  that  is  law,  not  legislative 
enactment  merely. 


42  BLAVEBT   DEFINED. 

§  45.  The  idea  of  chattel  slavery,  in  the  strict  legal  sense,  is 
definite  and  easily  conceived.  When  the  term  slavery  is  used 
to  express  the  condition  of  a  legal  person^  one  having  a  recog- 
nized capacity  for  rights  and  duties,  it  may  be  attributed  to 
various  conditions  of  obligation  on  the  part  of  one  person  op- 
posed to  the  conditions  of  privilege  on  the  part  of  others.  Chat- 
tel slavery  may  exist  under  restrictions  by  municipal  law  on  the 
power  of  the  master,  in  view  of  the  interests  of  society,  without 
vesting  the  rights  of  a  legal  person  in  the  slave.'  Tlie  person 
held  in  slavery  may  continue  to  have  the  character  of  property, 
in  the  eye  of  the  law,  in  states  wherein,  under  the  influence  of 
public  opinion  or  other  moral  causes,  protection  is  in  practice 
ensured  to  the  slave  as  a  natural  person,  unknown  to  other 
communities  wherein  the  law  upon  which  the  relation  rests  is 
the  same  in  judicial  apprehension.  By  a  greater  or  less  legal 
recognition  of  rights  in  the  slave,  and  of  corresponding  duties  on 
the  part  of  the  master  or  owner,  the  fundamental  character  of 
that  condition  may  be  changed,  and  the  property  recognized  by 
the  law  be  made  to  consist  in  tiie  right  of  one  person  to  the  labor 
or  services  of  another.  Every  recognition  of  rights  in  the  slave, 
independent  of  the  will  of  the  owner  or  master,  which  is  made 
by  the  state  to  which  he  is  subject,  diminishes  in  some  degree 
the  essence  of  that  slavery  by  changing  it  into  a  relation  between 
legal  persons. 

§  46.  The  term  slavery  has  been  popularly  applied  to  various 
forms  of  servitude  or  bondage,  instituted  under  municipal  law. 
But  in  its  general  legal  acceptation  it  may  be  defined  as  that 
condition  of  a  natural  person,  in  which,  by  the  operation  of  law, 
the  application  of  his  physical  and  mental  powers  depends,  as 
far  as  possible,  upon  the  will  of  another  who  is  himself  subject  to 
the  supreme  power  of  the  state,' and  in  which  he  is  incapable,  in 
the  view  of  the  law,  of  acquiring  or  holding  property,  and  of  sus- 
taining those  relations  out  of  which  relative  rights,  as  herein  be- 
fore defined  ( §  40 )  proceed,  except  as  the  agent  or  instrument 

'  Savigny :  Heut.  R.  R.,  B.  ii.,  c.  2,  §  65. 

"^  But  the  legal  condition  of  slavery  may  exist,  even  though  the  person  to  whom  it 
is  ascribed  is  not  the  bondman,  or  property  of  any  particular  person,  or  master.  See 
Savigny :  Heut.  R.  R.,  B.  ii.,  c,  1,  §  55,  note,  a),  c.  2,  §  65,  for  illustrations  under  the 
Roman  law. 


SLAVERY   DEFINED.  43 

of  another.  In  slavery,  strictly  so  called,  the  supreme  power  of 
tlie  state,  in  ignoring  the  personality  of  the  slave,  ignores  his  ca- 
pacity for  moral  action,  and  commits  the  control  of  his  conduct  as 
a  moral  agent,  to  the  master,'  together  with  the  power  of  trans- 
ferring his  autliority  to  another.  So  far  as  it  may  hold  the  mas- 
ter and  slave,  as  individuals,  morally  responsible  to  the  state  in 
their  mutual  relation,  it  so  far  recognizes  the  personality  of  the 
slave,  and  changes  the  property  into  a  relation  between  persons. 

§  47.  It  is  evident  that  there  may  be  political  or  economical 
regulations  in  a  civil  state  which,  while  not  interfering  directly 
with  the  freedom  or  security  of  the  person,  or  denying  the  ab- 
stract right  of  any  to  the  acquisition  or  enjoyment  of  property, 
may  yet,  in  view  of  public  or  of  partial  interests,  by  prohibi- 
tion of  certain  modes  of  action,  or  by  the  grant  of  superior 
privileges  to  others,  so  obstruct  the  industry  of  some  classes  of 
persons  and  repre^  their  moral  and  physical  energies,  as  to 
make  their  actual  condition  in  the  social  scale  lower  than  that 
of  others  living  under  the  control  of  a  private  master  who  is 
guided  in  its  exercise  by  wisdom  and  benevolence. 

Municipal  laws  may  so  operate  in  disabling  certain  classes  or 
races  in  a  nation,  with  respect  to  their  private  or  public  relations, 
as  to  reduce  them  to  a  species  of  dependence  upon  more  privi- 
leged classes  deserving,  in  a  general  sense,  the  name  of  slavery  or 
bondage."  The  distinction  of  these  cases  from  slavery,  properly 
so  called,  lies  in  the  legal  view  of  the  slave  or  of  his  labor  as 
private  property,  and  the  greater  or  less  denial  of  his  personal- 
ity, making  the   disposal  of  his  person  and  labor   to   depend 

'  Menander  apud  Stobceus :  Florileg  Ix.,  34. 

'Efjioi  ttSKis  iffri  Kol  Kuracpvyii  Ka\  ySfios 
Kal  ToO  StKaiov  rov  raS'iKov  -Kavrhs  KpiT^js 
'O  Sfffir6T7)i.     Tlphs  rovroy  eva  Set  ^[iv  t/xf, 

Spinoza :  Tr.  Theol.  Pol.,  c.  xvi.  "  Si  finis  actionis  non  est  ipsius  agentis  sed  im- 
perantis  utilitas,  turn  agens  sei"vus  est,  et  sibi  inutilis.'' 

■■*  For  illustrations  of  tbe  variety  of  meanins;  attached  to  liberty  and  slavery,  see 
20  Howell,  State  Trials,  Somerset's  case,  p.  14,  note  of  English  editor,  sneering  at  the 
boasts  of  the  French  lawyers  in  the  negro  case,  13th  vol.  of  Causes  Celebres,  (temp. 
Louis  XV.,)  p.  492,  ed.  1747.  And  compare  Chancellor  Harper's  Essay,  p.  23.  See 
Molyneux  :  Case  of  Ireland,  by  Almon,  p.  169.  "I  have  no  other  notion  of  slavery 
but  being  bound  by  a  law^  which  I  do  not  consent."  In  defining  libertv.  Dig.  Lib.  i., 
De  statu  homfnum,  Inst.,  x.ib.  i..  Tit.  3,  De  jure  personarum, — Libertas  est  naturalis 
facultas  ejus,  quod  cuique  facere  libet,  nisi  si  quid  vi,  aut  jure  prohibetur — the  very 
idea  of  laiv  is  excluded. 


44  EXTENT   OF   LAWS. 

on  tlie  will  of  a  single  private  individual,  and  not  on  a  law 
proceeding  immediately  from  the  supreme  political  power. — 
Under  a  Bjstem  of  caste  personal  liberty  and  the  right  of  prop- 
erty are  controlled  by  laws  restraining  the  activity  of  a  class  of 
persons,  more  or  less  strictly  defined,  to  a  particular  course  of 
life,  and  allowing  only  a  limited  enjoyment  of  property  and  rel- 
ative rights.  Feudal  slavery  confines  the  person  to  a  particular 
locality  and  a  subordinate  range  of  action.  Tliere  is  therein  a 
certain  degree  of  freedom  M'ithin  assigned  limits,  and  the  servi- 
tude is  due  rather  to  the  state  than  to  a  single  master,  being  the 
result  of  distinct  laws* more  or  less  oppressive  according  to  their 
nature  and  number. 

§  48.  From  what  has  been  before  said  of  positive  law,  in  its 
most  comprehensive  sense,  it  appears  that  its  existence  in  any 
one  country,  or  nation,  may  be  referred  in  its  origin  either  to 
the  legislation  of  some  one  possessor  of  sovereign  power,  {posi- 
tive law,  in  the  restricted  sense,)  or  to  the  judicial  recognition 
of  principles  founded  in  natural  reason  ;  while  its  authority  in 
any  particular  territory,  and  at  any  particular  time,  depends 
upon  its  being  then  and  there  supj^orted  by  some  one  such  pos- 
sessor of  sovereignty,  whose  existence  and  authority  is  indepen- 
dent of  law  in  the  ordinary  sense.  And,  since,  in  the  present 
condition  of  the  world,  being  entirely  occupied  by  nationalities 
of  some  sort,  the  actual  extent  of  that  territory  over  which  any 
possessor  of  sovereignty  shall  exercise  dominion  results  from 
the  public  international  action  of  different  states,  it  may  be  said 
to  be  determined  hy  international  law ;  though  it  is  a  fact  taken 
in  jurisprudence  to  be  independent  of  the  will  of  every  other 
national  power  than  that  which  is,  within  that  territory,  the 
source  of  the  municipal  (national)  law,  both  public  and  private. 

Or,  more  strictly  speaking,  those  principles  which  apply  to, 
and  are  said  by  way  of  analogy  to  be  a  laio  for  the  action  or 
intercourse  of  nations,  and  which  are  public  or  private  inter- 
national law,  according  to  the  character  of  the  persons  upon 
whom  they  operate,  may  be  taken  to  be  divided  into  two  por- 
tions. The  first  consisting  of  principles  wMch  are  not  laws  in 
the  primary  sense,  or  not  rules  of  action,  but  laws  in  the  secon- 
dary sense  only, — the  statements  of  the  mode  of  existence  or  of 


NATURAL,    OR   NECESSARY   LAW   OF   NATIONS.  45 

action  of  states,  or  political  bodies :  which  must  essentially  be 
acknowledged  in  every  national  jurisdiction  as  axiomatic  and 
basal  principles:  (and  which,  therefore,  enter  also  into  mu- 
nicipal law.)  Tlie  second  portion  consisting  in  rules  of  action, 
laws  in  the  primary  sense,  which  do  not  necessarily  have  the 
same  universal  recognition  and  extent ;  but  which,  if  received 
by  any  states,  or  nations,  regulate  the  reciprocal  action  of  those 
states,  or  nations,  and  of  the  individuals  of  whom  they  are  con- 
stituted, supposing  such  reciprocal  action  to  take  place.  Each 
of  these  portions  is  public  law,  in  reference  to  its  effects  on  the 
relations  of  the  state,  or  nation,  regarded  as  a  political  unity, 
and  private  law,  so  far  as  it  defines  or  affects  the  relations  of 
private  individuals.' 

§  49.  The  first  of  these  portions  of  international  law,  (also 
entering  into  municipal  law,)  is  expressed  in  the  definitions  of 
Buch  terms  as  these, — a  nation  ;  a  sovereign  ;  sovereignty ;  juris- 
diction ;  ybrt/m  /  national  territory;  domain;  subjection;  na- 
tive subject;  domicil ;  alien;  alienage,  &c. ;  which  are  terms 
necessarily  used  in  the  exposition  both  of  municipal  and  inter- 
national law.  Tliese  terms  are  statements  of  the  mode  of  exist- 
ence of  nations,  or  states,  derived  from  the  general  reasoning  of 
mankind  in  the  social  condition,  independently  of  the  legislative 
authority  of  any  one  of  the  states,  nations,  or  political  communi- 
ties whose  existence  is  defined  by  them.  So  far  as  these  state- 
ments are  constituent  parts  of  positive  law, — ^international,  or 
municipal  rules  of  action, — they  belong  to  those  principles  which 
are  judicially  recognized  as  having  the  character  of  universal 
laio,  (herein  also  called  from  its  universality  the  law  of  nations.) 
Although  these  principles  are  necessary  axioms  of  all  positive 
law,  international  or  municipal,  they  are  more  frequently  called 
principles  of  the  law  of  nations  in  view  of  their  application  to 
the  public  existence  of  nations  than  in  view  of  their  origin  and 
universal  character.  They  form  what  has  been  frequently  de- 
nominated, in  reference  both  to  their  origin  and  application, 
"  the   natural,    or  necessary  law  of  nations,"  and  have  been 

*  Bowyer :  Univ.  Pub.  Law,  22.  Therefore  Hermogenianus,  Dig.  L.  5.  De  Just 
et  Jure,  describes  civil  society,  and  the  necessary  transactions  among  men,  ns  springing 
from  jus  gentium,  by  which  he  means  natural  law ;  or  that  which,  in  the  words  of 
Gaius,  naturalis  ratio  inter  omnes  homines  constituit. 


46  POSITIVE   INTERNATIONAL   LAW. 

classed  with  international  rules  of  action  in  works  which  treat 
of  that  law  of  which  nations  are  the  subjects,  because  it  is  only 
in  international  relations,  public  or  private,  that  they  become 
subjects  of  judicial  cognizance.' 

§  50.  The  second  portion  of  international  law  consists  in 
whatever  rules  of  conduct  nations  may  observe  towards  each 
other,  or  enforce  between  tlie  individuals  of  whom  they  are 
respectively  composed.  This  part  of  international  law  is  more 
arbitrary,  or  has  not  that  necessary  existence  which  is  ascribed 
to  the  first  portion,  being  dependent  upon  the  autonomic  juridi- 
cal action  of  states ;  it  is,  therefore,  appropriately  denominated 
positive,  or  practical  international  law."  But  these  international 
rules  between  nations  are  based,  as  also  the  municipal  law  of 
each,  on  the  recognition  of  the  definitions  of  their  existence  as 
nations:  (which, by  being  so  universally  received,  are  judicially 
taken  to  belong  to  the  universal  principles,  otherwise  herein 
called  law  of  nations.)  The  distinction  in  the  use  of  the  terms 
international  law,  and  law  of  nations,  which  is  to  be  here  ob- 
served, is  this : — international  law  is  a  law  defined  with  refer- 
ence to  its  jurisdiction,  or  application; — the  law  of  nations  is  a 
law  defined  with  reference  to  its  origin,  or  historical  character.' 

§  51.  It  is  the  first  portion,  then,  of  international  law  to 
which  the  existence,  authority,  and  domain  of  any  one  state,  or 
nation,  is  to  be  attributed  in  a  legal  point  of  view,  and  not 
those  rules  of  action  which  are  here  called  the  second  portion. 
Because,  in  the  theory  of  jurispnidence  at  least,  the  existence 
and  power  of  each  nation  is  taken  to  be  independent  of  those 
rules ;  or  the  rules  themselves  are  a  consequence  of  that  exist- 
ence, authority,  and  domain. 

The  laws,  or  rules  of  action  for  private  persons,  which  are  to 
prevail  under  the  jurisdiction,  when  thus  determined,  of  any  state, 
or  nation,  are  ascribed  to  the  authority  of  the  state  as  a  politi- 

*  Reddie :  Inq.  in  International  Law,  2d  ed.,  pp.  119 — 130.  Vattel :  Prelim.,  §  8. 
Bowyer  :  Univ.  Pub.  Law,  pp.  11,  12.  Some  \sTit€rs  may,  however,  have  employed 
it  to  signify  natural  equity  applied  to  the  international  relations  of  states.  See 
2  Browne,  Civ.  and  Adm.  Law,  p.  13-15. 

'  By  Von  Martens  :  "  Positives  oder  pracktisches  Volkerrecht."  Compare  an  enu- 
meration of  the  various  synonyms  used  by  different  authors  to  designate  these  two 
parts  of  international  law  iu  Amer.  Jurist,  vol.  xx.  ;  article  by  M.  Victor  Foucher. 

'  Reddie;  luq.  in  International  Law,  2d.  ed.,  p.  410. 


I 

HISTORICAL   ELEMENT   IN   LAW.  47 

cal  person,  or  to  the  possessor  of  tliat  sovereign  power  in  which 
the  state  consists,  whether  they  are  applied  as  municipal  (national) 
or  ?nternational  piivate  law;  or,  in  other  words,  whether  they 
are  applied  with  or  without  reference  to  the  existence,  or  jurid- 
ical action  of  other  states,  or  nations.'  These  laws  are  tlie  proper, 
or  peculiar  law  of  that  state ;  and  in  being  confined  to  its  limits 
and  jurisdiction  are  known  as  the  local,  or  territorial,  or 
national  law ;  or,  what  has  been  termed  the  "  municipal  law " 
in  English  and  American  jurisprudence,  at  least  since  the  time 
of  Black  stone. 

§  52,  An  exposition  of  the  law  prevailing  within  the  terri- 
torial domain  of  any  one  country,  or  nation,  is,  therefore, 
necessarily  always  historical;"  consisting  in  a  statement  of  the 
existence  of  a  possessor  of  sovereign  national  power,  and  of  the 
exercise  of  that  power  in  promulgating  rules  of  action  for  pri- 
vate persons,  either  by  positive  legislation,  or  by  judicial  action, 
under  its  authority ;  and  the  law  is  necessarily  described  both 
as  public  and  private  law. 

§  53.  "Whatever  rules  of  action  are  enforced  within  the  do- 
main of  any  one  state,  or  nation,  as  its  local,  territorial,  or 
national  law,  may  apply  to  persons  within  that  jurisdiction, 
according  to  any  distinctions  which  the  supreme  power  of  that 
state  might  recognize  among  them ;  that  is,  the  local  law,  by 
being  applied  to  different  persons  according  to  those  distinc- 
tions, becomes  distinguished  into  different  personal  laws.^  These 
distinctions  may  arise  from  principles  which  are  connected  with 

*  Bowyer :  Univ.  Pub.  L.,  p.  156.  "  The  general  principle  of  modem  times  is 
that  the  territory  determines  the  law,  and  the  law  of  the  territory  regulates  the  pro- 
perty and  contracts  of  all  who  inhabit  the  country.  In  this  respect  citizens  difiFer  little 
from  foreigners,  and  national  oriffin  has  no  influence.  (Savigny :  Hist.  R.  L.,  French 
Tr.,  vol.  i.,  p.  89.)  We  denote  this  state  of  things  by  the  common  expression,  the  law 
of  the  land,  meaning  the  territorial  law." 

'  Whewell :  Elem.  Morality,  &c.,  B.  ii.,  ch.  vi.,  209,  21.'5.  Reddie's  Inquiries  Ele- 
ment, &c.,  24,  25.  Hegel:  Grundlinien  der  Pliilos.  dcs  Rechts,  §  212.  Tr. :  "The 
science  of  positive  law  is  to  a  certain  extent  an  historical  science,  which  has  its  begin- 
ning in  authority,  (or  which  begins  by  recognizing  authority.') 

Mackeldey's  Compend.,  §  3.  "  Positive  law  is  the  law  established  by  historical 
facts,  or  the  sum  of  those  principles  which  are  acknowledged  in  a  state  as  principles  of 
law,  and  con.sequently  have  authority  as  such." 

In  the  exposition,  or  teaching,  of  jurisprudence — the  science  of  positive  law — two 
schools  are  recognized — the  analytical  and  the  historical.  But  there  is  not  any  real 
antagonism  between  them.     See  Reddie's  Inq.  El.,  p.  88. 

'  Ante,  §  2o.     Duponceau  on  Jurisdiction,  p.  24. 


48  INTERNAL   AND   INTERNATIONAL   LAW. 

the  existence  of  states  and  nations,  or  their  mutual  intercourse, 
and  which  are  manifested,  or  employed  in  rules  having  an  inter- 
national application.  In  this  manner,  when  the  international 
law  is  applied,  or  enforced  by  any  state,  or  nation,  upon  per- 
sons within  its  jurisdiction,  and  becomes  identified  in  authority 
with  the  municipal  (national)  law  thereof,  it  is  at  the  same  time 
distinguished  as  a  pei*sonal  law.' 

In  view  of  this  difference  of  application,  the  private  law  pre- 
vailing within  any  national  jurisdiction  may  be  distinguished 
into  municii)al  private  law,  (which,  with  propriety,  may  be 
called  internal  private  law,)  and  international  private  law, 
according  to  the  character  of  the  persons  to  whom  it  applies. 

§  54.  To  illustrate  more  fully  this  distinction  in  the  applica- 
tion of  the  local,  or  territorial  law  of  any  one  state  to  persons : 
— It  is  an  axiomatic  principle  of  universal  law,  included  in  that 
"  natural  and  necessary  law  of  nations,"  which  was  described  as 
forming  the  first  portion  of  international  law,  under  the  division 
herein  before  given,  that  the  effect  of  sovereign  power  upon  the 
legal  relations  of  the  person  is  co-existent  with  the  presence  of 
such  person  within  the  limits  which  the  public  law  (international 
and  municipal)  assigns  to  the  jurisdiction  of  the  state,  or  sove- 
reign. This  actual  presence,  and  the  relation  of  subjection 
which  is  incurred  by  it,  may  commence  either  by  the  birth  of 
the   person,  or  by  his  entry  from   some   foreign  jurisdiction. 

*  Reddie's  Inq.  in  Intcniat.  Law,  pp.  463-6.  International,  as  well  as  municipal 
law,  must  also  apply  to  things  as  well  as  persons;  that  is,  the  rights  (with  their  cor- 
respondent obligations)  which*  arc  determined  by  international  law  may  be  rights  in 
respect  to  things ;  but  whenever  rights,  or  obligations,  in  respect  to  things,  are  ascribed 
to  international  law,  as  contrasted  with  municipal  (internal)  law,  the  law  has  a  per- 
sonal extent  from  tlie  character  of  the  pereons  who  sustain  the  relations  constituted  by 
those  rights  and  obligations. 

"  The  law  prevailing  locally  thus  becomes  distinguished  into  internal  and  itUemational 
according  to  Bentham's  tei-minology.  Or  it  might  be  said  to  be  distinguished  as  acting 
internally  or  intemationally,  according  to  "  the  political  quality  of  the  persons  whose 
conduct  is  the  object  of  the  law.  These  may  on  any  given  occasion  be  distinguished 
as  members  of  the  same  state,  or  as  members  of  different  states ;  in  the  first  case,  the 
law  may  be  referred  to  the  head  of  internal,  in  the  second  to  the  head  of  iniernational 
jurisprudence  "     Bentham  :  Morals  and  Legislation,  ch.  xix.,  §  2,  (xxv.) 

Bowyei's  Commentaries  on  Modern  Civil  Law,  Lond.,  1848,  p.  18.  "  Thus  jurists 
of  modern  times  have  divided  public  law  into  internal  and  eriemal.  The  former  is  that 
which  regulates  the  constitution  and  government  of  each  community,  or  common- 
wealth, within  itself,  and  the  latter  is  that  which  concerns  the  intercourse  of  different 
commonwealths  with  each  other  :  this  is  properly  known  by  the  name  of  itUemalional 
law." 


DISTINCTION    OF    PERSONS.  49 

Thus,  tlierc  is  a  natural  possibility  that  the  same  person  may, 
at  diti'erent  times,  be  subject  to  difterent  jurisdictions;  and 
there  is  in  every  state  a  natural  and  necessary  distinction  be- 
tween native-born  subjects  and  alien-born  subjects ;  which,  so 
far,  is  a  necessary,  or  axiomatic  principle.  But  the  ditlerent 
legal  relations  which  make  the  legal  distinction  between  native 
and  alien  subjects,  or  between  temporary  subjects  and  domi- 
ciled subjects,  depend  upon  some  rule  of  action  enforced  by  the 
state. 

The  fact  of  being  present  within  a  particular  jurisdiction, 
with  or  without  concomitant  circumstances,  might  be  taken, 
irrespectively  of  the  circumstances  of  native,  or  foreign  birth, 
to  be  that  which  should  determine  the  operation  of  the  laws  of 
a  state  upon  persons  within  its  territorial  jurisdiction  :  in  which 
case,  the  recognition  of  such  fact  becomes  an  axiomatic  princi- 
ple, in  determining  the  relations  of  persons  thus  distinguished. 
A  residence,  or  continuance,  under  certain  conditions,  to  which 
it  i^  not  necessary  here  to  allude  more  particularly,  is,  under 
the  name  of  domicile  actually  thus  recognized :  that  is,  it  is 
actually  taken  to  have  a  certain  effect  in  determining  the  opera- 
tion of  the  local  law.  The  local,  or  territorial  law  of  any  one 
state  or  country  might  possibly  make  no  distinction,  between 
persons  subject  to  its  authority,  in  respect  either  to  the  circum- 
stance of  native  or  alien  birth,  or  to  that  state  of  circumstances 
which  is  known  as  domicil :  and  if  it  were  possible  that  there 
should  be  no  recognition  of  legal  rights  and  obligations  arising 
out  of  relations  caused  by  previous  subjection  to  another  do- 
minion, there  would,  in  that  case,  be  no  manifestation  of  inter- 
national law,  operating  as  private  law.'  When  the  local  or 
municipal  law  is  spoken  of  as  applying  territorially,  without 
reference  to  persons  as  alien  and  native,  or  alien  and  domiciled, 
it  is  contrasted  with  international  law — taken  in  the  sense  of  a 
rule  of  which  states  are  the  subjects. 

But  when  the  rights  and  duties  of  private  persons  witliin 
any  national  dominion  differ  according  to  the  circumstance  of 
domicil  or  alienage ;  or  vary  as  they  may  or  may  not  have 
been  subject  to  a  foreign  jurisdiction,  the  local  or  national  law 

'  Bowyer:  Univ.  Pub.  Law,  151-3. 


50  PEKSONAL   EXTENT   OF   LAWS. 

is  spoken  of  as  applying  differently  to  the  persons  so  distin 
guished :  and  in  acquiring  the  character  of  a  personal  law,  (in 
contrast  with  a  territorial  law,)  may  be  itself  divided  into 
strictly  mmiicipal,  (or  internal),  private  law,  and  international 
private  law  ;  though  each  part  rests  on  the  same  political  au- 
thority :  and  the  condition  of  private  persons,  whether  regarded 
as  the  subjects  of  rights  and  duties,  or  as  only  objects  of  action, 
(ante,  §  21),  is  a  necessary  topic  of  one  or  the  other  of  these 
divisions  of  the  local,  municipal,  civil,  or  national  law  of  each 
country.* 
y  §  55.  According  to  what  has  been  before  said,  every  law 
determining  the  relations  of  natural  persons,  whether  alien  oi 
native,  is  to  be  ascertained  either  from  positive  legislation,  or 
by  judicial  recognition  of  laws  founded  in  natural  reason,  and 
identified  with  the  will  of  the  state,  (§  29.)  Tlie  autonomous 
decree  {esto)  of  a  sovereign  power  may  attribute  any  rights  or 
obligations,  (being  restrained  only  by  the  necessary  conditions 
of  things — §  6,)  to  particular  persons,  or  may  attribute  them 
generally  to  all  persons  within  the  territorial  jurisdiction  of  that 
sovereign  source  of  law."  The  tribunal,  which  administers  law 
as  the  pre-existing  will  of  the  state,  is  restricted  to  declaring 
what  law  is  {videtui'\  and  in  the  personal  extent  which  it  gives 
to  laws  must  be  guided  by  certain  existent  criteria. 

The  ascertained  will  of  the  state  is  binding  on  all  within  its 
jurisdiction  ;  though  it  has  unequal  effect  upon  different  per- 
sons ;  creating  different  rights  and  obligations,  in  relations  in 
which  they  are  the  subjects  of  rights  and  duties,  or  the  objects 
of  action.  The  action  of  men  in  society  being  different,  the 
relations,  rights  and  duties  of  all  cannot  be  alike. 

But  an  individual  or  absolute  right  may  be  ascribed  by  the 
law^  of  a  country  to  any  number  of  natural  persons  within  its 
domain,  though  it  must  be  exercised  by  each,  relatively  to 
different  persons  and  things — the  objects  of  action. 

'  Mr.  Reddie  uses  the  term  internal  law  as  synonymous  with  that  law  which  he 
calls  the  national  law — Blackstoue's  municipal  law, — and  thus  loses  the  benefit  of  the 
distinctive  term  iniemal  to  mark  this  division  of  the  national  (municipal)  law  according 
to  its  application  to  different  persons.     See  luq.  Elem.  &c.,  p.  07. 

Compare  Masse :  Droit  Commer.,  Tom.  i.,  §  37,  and  §§  57-60,  defining  fe  droit 
cinl,  including   le  droit  commercial. 

'  Compare  State  v.  Manuel,  4  Dev.  «fe  Batt.,  N.  C.  Rep.  p.  23. 


LAWS   OF   UNIVERSAL   PEESONAL   EXTENT.  61 

§  56.  Such  a  right  may  attach  to  all  domiciled  persons,  or 
to  all  alien  persons.  A  certain  condition  or  status  of  natural 
persons,  whether  consisting  in  rights  and  duties  of  a  legal  per- 
son, or  in  a  chattel  condition,  may,  whether  determined  by  posi- 
tive legislation  or  by  a  judicial  application  of  natural  reason, 
be  the  effect  of  either  municipal  (internal),  or  of  international 
law,  or  of  both  ;  the  extent,  or  application  to  persons,  of  a  law 
originating  in  positive  legislation,  depending  upon  that  legisla- 
tion only ;  and  there  being  no  necessity  for  supposing  that  the 
dictates  of  natural  reason  on  this  point  will  be  the  same,  in  rules 
of  action  applying  to  alien  persons,  as  in  those  relating  to  the 
native  or  domiciled  inhabitants  of  any  supposed  national  juris- 
diction. 

§  57.  Or  the  state,  or  supreme  power,  may  attribute  any 
individual  right  or  rights  to  each  natural  person  within  its 
domain,  whether  domiciled  or  alien.  In  this  case,  the  law  at- 
tributing those  rights,  would,  in  the  jurisprudence  of  that  state, 
be  a,  universal  principle  in  respect  to  its,  personal  extent ;  that  is, 
in  applying  equally  to  each  natural  person.  In  this  case,  the 
individual  rights  so  attributed  are  not  only  distinguishable 
from  relative  rights  by  existing  in  respect  to  the  whole  com- 
munity, independently  of  relations  towards  specific  persons  and 
things,  (ante,  §  40.)  but  they  may  be  called  absolute,  ot  primor- 
dial, or  natural  rights,  because  the  law  attributes  them  to 
natural  persons  simply  as  such,  or  as  beings  possessing  the 
human  form  and  nature,  and  as  an  intrinsic  element  of  their 
human  character. 

§  58.  The  extent  of  any  principle  or  rule  affecting  the 
status  of  private  persons  is  always  subject  to  the  supreme  legis- 
lative power.  But  in  the  absence  of  such  legislation,  it  must 
be  determined  by  judicial  criteria  of  natural  reason  as  before 
set  forth.  (§§  29  to  36.)  Kules  or  principles  determining  the 
condition  or  status  of  natural  persons  may  be  derived  from 
universal  jurisprudence.  But  it  is  to  be  borne  in  mind,  that,  in 
being  so  derived  into  the  jurisprudence  of  any  one  state,  they 
do  not,  therefore,  have  the  universal  personal  extent  which  is 
above  spoken  of.  This  extent  of  a  personal  law  being  dependent 
upon  the  will  of  the  state  in  which  it  is  applied ;  while  a  uni- 


52  UNIVEESALITT — HOW    PREDICATED. 

versal  character,  ascribed  to  any  principle,  has  reference  to  its  juri- 
dical source  or  origin  ;  that  is,  depends  upon  the  fact  of  its  having 
been  applied  by  all  nations,  or  the  greater  part,  (ante,  §§36 — 38 :) 
which  application  may  have  been  in  respect  to  a  greater  or  less 
proportion  of  persons. 

The  different  extent  of  laws  to  natural  persons  according  to 
their  subjection  at  different  times  to  different  national  jurisdic- 
tions, and  the  mode  in  which,  by  the  application  of  international 
law  to  the  relations  of  private  persons,  imi versal  jurisprudence 
may  be  distinctly  recognized,  and  local  or  territorial  laws, 
affecting  condition  or  status,  may  receive  universal  personal 
extent,  will  be  considered  in  the  following  chapter. 

Note. — The  following  extract  from  an  Essay  by  Henry  Snmner  Maine,  LL.  D., 
On  the  Conception  of  Sovereignty,  and  its  importance  in  International  Law — Papers 
read  before  the  Juridical  Society,  London,  June,  18.55 — p.  26,  may,  with  some  readers, 
serve  to  justify  expressions  in  the  text,  which  may  at  first  appear  to  be  an  attempt 
after  a  useless  novelty  of  expression.  Speaking  of  Austin's  Province  of  Jurisprudence 
Determined,  Dr.  Maino  says,  p.  29 :  "  And  here,  as  I  have  alluded  to  Mr.  Austin's  ) 
treatise,  I  trust  I  may  be  pardoned  for  saying  that  I  know  no  reason,  but  one,  why  it  ^ 
has  not  long  since  dispelled  the  indifference  to  the  systematic  study  of  Jurisprudence  > 
which  was  so  eloquently  lamented  at  the  inaugural  meeting  of  this  society.  [By  Sir  ) 
Richard  Bethell,  p.  1,  of  the  same  tract]  The  one  drawback  on  its  usefulness  has  j 
been  its  style — which  is  such  as  to  repel  a  superficial  reader,  and  not  to  attract  even  a 
patient  one ;  but  it  would  be  foolish  not  to  admit  that  there  are  abundant  excuses  for 
the  peculiarity.  England  has  no  literature  of  jurisprudence  ;  consequently,  the  English 
language  comprises  no  true  juristical  phraseology.  Our  English  law  terms  are  strictly 
terms  of  art,  and  it  would  be  absurd  to  attempt  to  strain  them  beyond  their  well- 
defined,  long  accepted,  and  technical  meaning.  The  language,  then,  which  must  be 
used  for  questions  of  universal  jurisprudence  is  popular  language,  infected  with  all  the 
vices  of  common  speech,  vague,  figurative  and  general.  In  employing  it  for  such  an 
examination  of  these  questions  as  is  appropriate  to  closet  study,  it  is  necessary  to  be 
constantly  limiting  and  qualifying  it,  to  be  perpetually  weeding  it  of  metaphor,  and  to 
be  carefully  cleaning  it  from  the  misleading  suggestions  which  lurk  in  mere  arrange- 
ments of  words  and  collocations  of  phrase.  Among  the  numberless  advantages  which 
may  be  looked  for  from  an  extended  study  of  Roman  law,  I  am  not  sure  that  the  high- 
est will  not  be  the  introduction  of  a  terminology,  neither  too  rigid  for  employment 
upon  points  of  the  philosophy  of  law,  nor  too  lax  and  elastic  for  their  lucid  and  accu- 
rate discussion." 


CHAPTER  II. 

FAETHER  CONSroEKATION  OF  THE  NATUKE  OF  PRIVATE  INTER- 
NATIONAL law:  ITS  ORIGIN  AND  APPLICATION.  ITS  EFFECT 
UPON   CONDITIONS   OF  FREEDOM   AND   BONDAGE. 

§  59.  In  the  definition  of  international  law  which  was  given 
in  the  first  chapter,  it  was  shown  to  have  the  name  of  a  law 
only  by  an  improper  use  of  the  term,  when  considered  as  a  rule 
of  action  for  states  in  their  several  entity  or  personality ;  since, 
though  it  consists  of  a  recognized  body  of  rules  distinct  from 
the  municipal  (national)  law  of  each  state  or  nation,  it  is  not 
prescribed  to  them  by  a  superior,  but  operates  upon  them  as 
political  persons,  or  upon  private  persons  within  their  respective 
domain,  only  by  their  own  several  allowance  or  consent.  This 
being  the  legal  or  juridical  view  of  the  obligation  of  that  law  ; 
whatever  may  be  its  source  in  a  divine  rule  of  action,  or  law  of 
nature.  "When,  therefore,  private  international  law  operates 
upon  private  persons,  in  any  national  jurisdiction,  by  the  allow- 
ance of  the  supreme  power  of  the  state,  it  has,  in  respect  to 
sach  persons,  the  same  sanction  and  force  as  the  municipal 
(national)  law,  and,  as  to  all  persons  who  are  distinct  from  the 
state  or  sovereign,  it  has  equally  the  effect  and  authority  of 
law  in  the  proper  meaning  of  the  term.  The  distinction  of 
private  international  law  from  private  municipal  (internal)  law 
arising,  not  from  a  difference  in  the  nature  of  their  authority 
over  individuals,  but  in  the  character  of  the  relations  wiiich 
they  severally  affect. 

§  60.  When  considering,  in  the  first  chapter,  the  mode  in 
which  positive  law  becomes  known  as  the  law  of  some  one 


54  INTEKNATIONAL   LAW HOW   DISCRIMINATED. 

state  or  country  (§  48),  the  internatioiial  law  was  described  as 
being  divided  into  two  portions.  The  first  consisting  of  laws 
in  the  secondary  sense  only, — necessary  axioms,  or  definitions 
of  the  political  existence  of  states, — entering  into  both  inter- 
national and  municipal  (national)  law.  The  second,  consisting 
of  laws  in  the  jpinmai^y  sense — rules  of  action — which  may,  or 
may  not,  exist,  or  be  observed,  between  specified  states.  The 
first  portion,  which,  as  was  remarked  in  the  same  place,  cor- 
responds with  that  which  is  sometimes  called  "  the  natural,  or 
necessary  law  of  nations,"  but  which  indicates  at  the  same  time 
relations  of  private  persons,  as  well  as  the  relations  of  states. 
may  indeed  be  taken  to  be  antecedent  to,  and  independent  of, 
the  power  of  any  one  state :  but  the  rules  of  action  which  com- 
pose the  second  portion,  whatever  authority  they  may  have  in 
natural  reason,  become  law  for  private  individuals  only  by 
being  enforced  by  the  power  which  promulgates  the  municipal 
(national)  law  of  that  jurisdiction  or  state  in  whicli  the  person 
may  be  found. 

§  61.  If,  then,  it  is  asked — wherein  does  private  interaational 
law  consist,  as  a  rule  of  action  in  any  one  national  jurisdiction, 
distinct  from  the  municipal  (internal)  law  of  that  jurisdiction? 
— the  answer  must  be  found  by  ascertaining  the  effect  of  the 
necessary  axiomatic  principles  or  definitions  composing  the  first 
part  of  the  international  law,  as  before  described,  upon  private 
persons  and  upon  things ;  and  next — the  actual  allowance  or 
creation  of  rights  and  obligations  of  private  persons,  as  the 
incidents  of  legal  relations  which  have  an  international  charac- 
ter from  the  fact  that  the  agents  and  objects  of  action  presup- 
posed in  them  are  persons,  or  persons  and  things,  not  altogether 
or  exclusively  under  the  juridical  power  of  a  single  nation  or 
state  :  those  persons,  or  those  persons  and  things  being  dis- 
criminated, by  the  application  of  the  axiomatic  principles  above 
spoken  of,  as  persons  subject  to  different  jurisdictions ;  such 
persons  being  alien,  or  native,  domiciled,  or  temporary  subjects 
in  reference  to  some  one  jurisdiction  or  fotnim. 

§  62.  The  terms  or  phrases  by  which  the  nature  or  mode  of 
existence  of  states  or  nations  is  set  forth  or  defined,  are  so  gene- 
rally known  in  the  maxims  of  public  law,  that  it  is-  not  neces- 


FIRST   AND   SECOND   MAXIMS.  55 

sary  here  to  attempt  any  separate  exposition  of  them :  though 
it  may  become  necessary  hereafter  to  consider  particularly  the 
meanincj  of  some  of  those  terms,  as  they  may  be  used  in  stating 
international  or  municipal  (internal)  rules  of  action. 

The  general  principles  or  maxims  which  are  contained  in 
the  definition  of  these  terms,  are  set  forth  most  at  large  by 
writers  who  treat  of  public  international  law,  regarded  as  a  rule 
of  imperfect  obligation  {ante,  §  11,)  of  which  states  or  nations 
are  the  subjects ;  though  they  are  equally  presupposed  in  rules 
determining  tlie  relations  of  private  persons  towards  those  states 
or  nations,  and  having  the  force  of  law  in  the  strict  sense — i.  e., 
public  municipal  (national)  law. 

§  63.  Upon  an  examination  of  these  maxims,  as  stated  by 
writers  on  public  law,  it  will  be  seen  that  there  are  three  which 
may  be  taken  for  the  most  general  or  fundamental ;  and  which 
are  in  fact  but  one  and  the  same  definition  of  sovereignty  ; — or 
they  are  assertions,  in  different  forms,  of  the  essential  character 
of  sovereignty  ;  or,  again, — descriptions  of  sovereign  national 
power  in  three  different  relations.  Tlie  first  being  a  definition 
of  sovereign  national  power  considered,  as  it  may  be  said, 
absolutely, — or  in  relation  to  its  own  materials,  or  constituent 
parts ;  without  reference  to  the  existence  of  any  other  manifes- 
tation or  embodiment  of  that  kind  of  power :  which  may  be 
thus  stated : — 

I.  The  jpower  of  every  state,  or  nation,  is  absolute,  self-de- 
pendent, or  supreme,  within  that  space,  or  territonnj,  which  it 
possesses,  or  occupies,  as  its  own  domain,  and  over  all  persons 
and  things  therein. 

The  second  maxim  is  but  the  same  assertion  expressed  rela- 
tively to  the  co-existence  of  several  states,  or  nations ;  recog- 
nizing the  limitation  of  each  by  the  fact  of  the  equally  inde- 
pendent existence  of  the  others  ;  this  is,  that — 

II.  The  sovereign  power  of  one  state,  or  nation,  is  not  to  he 
recognized  as  sovereign,  or  has  no  existence,  as  such,  heyond  its 
own  domain,  or  ten^tory,  or  within  the  space,  or  territory,  which 
cotistitutes  the  domain  of  another  possessor  of  national  sovereignty. 

§  64.  These  two  maxims,  Avhen  taken  for  maxims  of  inter- 
national law,  belong  to  the  first  portion  of  international  law, 


56  EELATION   TO    SPACE   AND   TIME. 

according  to  the  division  herein  before  made,  {ante,  §  48,)  since 
they  can  be  called  laws  in  the  secondary  sense  only ;  not  being 
properly  rules  of  action,  but  statcnients  of  a  mode  of  existence, 
or  of  action.  They  must  lie  at  the  foundation  of  all  positive 
law ;  and  they  have  in  jurisprudence  the  character,  or  extent 
of  universal  law — the  law  of  fuithns,  (Jus  gentium^  because 
actuall}''  asserted,  or  proclaimed,  and  univereally  received,  by 
nations,  or  states,  as  being  natural  and  necessary  principles.' 

In  the  manifestation  of  this  sovereign  power,  over  persona 
and  things,  by  states,  or  nations,  originates  laio  in  the  primary 
sense — rules  of  action ;  forming  relations  between  persons  in 
respect  to  other  persons,  and  in  respect  to  things.  Since  these 
relations  are  legal, — that  is,  are  known  as  the  elfects  of  law,  it 
is  a  consequence  of  the  two  maxims  just  stated,  that  they  have 
existence  only  in  some  one  jurisdiction  in  which  that  law  is 
known  as  a  coercive  rule  proceeding  from  the  sovereign  of  such 
jurisdiction,  and  the  rights  and  obligations  composing  those 
relations  have  no  legal  force  beyond  it. 

§  65.  It  was  remarked  in  the  first  chapter  that  international  law 
(public  and  private)  arises  from  the  necessarily  existing  circum- 
stance that  the  whole  variety  of  human  interests  and  action 
cannot,  from  their  nature,  (or,  it  may  be  said,  from  their  rela- 
tion to  space  and  time,)  be  distinctly  divided  among,  and  sepa- 
rately included  under  the  limits  of  single  states ;  and  yet  the 
juridical  power  of  society  must  be  supposed,  in  some  form, 
either  by  enjoining,  permitting,  or  prohibiting,  to  be  exerted 
upon  interests  and  actions  which  ai*e  not  so  included  under  the 
exclusive  dominion  of  single  states,  {ante,  §  10.)  The  effect  of 
law  is  exhibited  in  legal  relations,  comprehending  rights,  with 
their  corresponding  obligations,  in  respect  to  pei-sons,  and  in 
respect  to  things.  The  action  involved  in  any  legal  relation 
must  take  place  in  reference  both  to  space  and  time  ;  and  the 
conceivability  of  relations  whose  legal  existence  is  indetermin- 
able under  the  law  of  a  single  state,  (which  conception  sui^poses 
an  international  law  according  to  the  definition  in  the  first 
chapter,)  will  arise  from  postulates  of  their  existence  in  respect 
to  space  and  in  respect  to  time :  such  relations  being,  also,  dis- 

'  Bowyer :  Univer.  Public  Law,  p.  151,  and  the  citations. 


RELATIONS  DISCRIMINATED.  57 

tinguisliable  among  themselves  by  differences  in  the  compara- 
tive eftect  of  space  and  time  in  connecting  their  legal  existence 
with  the  juridical  action  of  more  than  one  state. 

For,  Jirsf,  relations  may  be  supposed,  or  conceived,  not  to 
be  exclusively  determinable  by  the  juridical  power  of  a  single 
state,  by  reason  of  diiierences  in  the  respective  geographical 
positions,  at  one  and  the  same  time,  of  the  persons  and  things 
which  are  to  be  the  subjects  and  objects  of  the  rights  therein 
involved.' 

And,  secondly,  other  relations  may  be  supposed,  or  con- 
ceived, not  to  be  so  determinable  under  the  juridical  power  of 
a  single  state,  by  reason  of  differences  in  the  respective  times 
at  which  the  persons,  or  the  persons  and  things,  which  are  to  be 
the  subjects  and  objects  of  the  rights  involved  in  those  relations 
are  together  found  within  different  geographical  jurisdictions : 
they  being  at  one  time  within  the  territorial  dominion  of  one 
state,  and  afterwards  within  that  of  another. 

§  QQ.  It  will  be  seen  in  comparing  these  classes  of  relations 
that  there  is  a  manifest  difference  in  the  degree  in  which  it  may 
be  said  that  they  are  not  exclusively  determinable  under  the 
juridical  power  (the  law)  of  single  states. 

In  the  class  of  relations  first  described,  the  persons  and 
things  which  are  to  be  the  subjects  and  objects  of  the  rights  in- 
volved in  those  relations,  not  being  at  the  same  time  under  the 
same  jurisdiction,  it  is  actually  impossible,  from  the  axiomatic 
principles  of  jurisprudence,  (natural  and  necessary  law  of  na- 
tions,) that  the  action  in  which  those  rights  must  be  manifested 
should  take  place  without  a  concurrent  juridical  action  on  the 
part  of  the  respective  states,  either  producing  one  common  rule, 
or  consenting  to  the  controlling  operation  of  rules  proceeding 
from  one  or  from  the  other.  In  this  case  it  may  be  said  that 
the  question — by  which  juridical  power  the  relation  is  to  be  de- 
termined ? — precedes  the  legal  existence  of  the  relation. 

'  Wheaton  :  International  Law,  Part  ii.,  ch.  2.  "  It  often  happens  that  an  indi- 
vidual possesses  real  property  in  a  state  other  than  that  of  his  domicile,  or  that  con- 
tracts are  entered  into  and  testaments  executed  by  him  in  a  country  different  from 
either,  or  that  he  is  interested  in  successions  ab  intcstato  in  such  third  country  ;  it  may 
happen  that  he  is  at  the  same  time  subject  to  two  or  three  sovereign  powers — to  that 
of  his  native  country,  or  of  his  domicile,  or  to  that  of  tho  place  where  the  property  in 
question  is  situated,  and  to  that  of  the  place  where  the  contracts  have  been  m.ide,  or 
the  acts  executed." 


58  THIRD  MAXIM. 

But,  in  the  other  class  of  relations,  the  persons  and  things 
which  are  to  be  the  subjects  and  objects  of  the  rights  involved 
in  those  relations,  having  been  together  under  the  juridical 
power  of  one  state  before  the  other  is  supposed  to  liave  any 
possible  operation,  the  existence  of  a  relation  between  them 
precedes  the  question — by  which  juridical  power  the  legal  force 
of  that  relation  is  to  be  determined? — :  and  there  is  not  any 
actual  impossibility  that  the  action  in  which  those  rights  must 
be  manifested  should  take  place  witliout  a  concurrent  juridical 
action  on  the  part  of  the  respective  states ;  the  persons  and 
things  between  whom  the  relation  is  supposed  to  exist,  being,  at 
different  times,  under  the  exclusive  dorninion  of  some  one  juridi- 
cal power. 

§  67.  Now  from  the  possible  connexion,  in  respect  to  per- 
sons and  things,  which  is  here  indicated  between  distinct  sources 
of  law  having  separate  jurisdictions,  arises  the  third  of  the  three 
fundamental  maxims  before  enumerated ;  which,  like  the  two 
already  stated,  is  only  a  recognition  of  sovereign  states  or  na- 
tions as  being  the  independent  sources  of  positive  law,  even 
while  stating  this  possible  relation  or  connexion  between  them  ; 
which  maxim  may  be  thus  expressed  : — 

III.  The  laws  of  one  nation  or  state  may^  hj  the  consent  or 
allowance,  and  therefore  under  the  authority  of  the  supreme 
national  2?ower  in  another  nation  or  state,  have  the  effect  of  law 
within  the  jurisdiction  of  the  latter. 

This  maxim,  it  will  at  once  be  perceived,  is  from  the  mean- 
ing of  the  term  law,  inconsistent,  except  as  it  is  merely  anotlier 
form  of  the  first  and  second.  For  the  law — being  a  rule  of 
action  resting  on  the  authority  of  some  one  sovereign — if  the 
laws  of  one  state  can  be  said  to  take  effect  in  the  jurisdiction  of 
another,  they  are  in  fact  the  law  of  the  state  in  which  they  take 
effect,  and  not  of  the  first.* 

»  Compare  Story's  Confl.  L.,  §  21,  22.     Fcelix  Droit  International  Prive,  §  10,  11. 

Scbrefifner  in  Entwicldung  des  Intemat.  Privatrechts,  g  26,  cites  Zachariii,  as  saying. 
(Tr.)  "Each  right,  and  in  the  same  degree  each  obligation,  subsists  exclusively  under 
the  laws  of  the  land  in  which  the  right  or  the  obligation  ( according  to  the  effect  of 
those  laws)  is  to  be  enforced  and  is  enforced  under  the  supposed  circumstances.  This 
rule,  (which  in  fiict  is  merely  a  reiteration  of  the  well  known  maxim.  Leges  non  valent 
extra  ierritorium,  in  the  only  sense  which  can  be  given  to  it,)  is  derived,  immediately, 
from  the  sovereignty  of  states.      For  if  it  should  be  held  that  the  law  of  a  particular 


PLACE    OF   THE   THIRD   MAXIM.  59 

§  68.  The  first  two  of  these  three  maxims  are  necessary 
propositions  in  defining  what  sovereign  national  power  is ;  and 
lie  at  the  foundation  of  all  positive  law — municipal  (internal)  or 
international.  The  third  is  not  necessary  in  the  same  sense :  be- 
ing the  statement  of  a  manifestation  of  sovereign  power  which 
may  or  may  not  take  place.  It  is  however  the  statement  of  a 
relation  or  condition  only ;  and  therefore,  like  the  first  and  sec- 
ond, a  law  in  the  secondary  sense  of  the  word  law.  It  is  an 
axiom  of  public  law  lying  at  the  foundation  of  that  which  is 
heroin  before  called  private  international  law ; — so  far  as  such 
international  law  can  be  judicially  recognized  in  any  national 
jurisdiction,  as  distinct  from  the  private  municipal  (internal)  law 
of  tliat  jurisdiction  : — private  intei^ational  law  ; — which,  as  de- 
scribed in  the  first  chapter,  determines  the  realization  of  the  legal 
relations  of  private  persons  in  those  interests  and  actions  which 
cannot  subsist  or  have  not  continued  under  the  exclusive  territo- 
rial authority  of  any  one  state  or  nationality :  (§  10)  which  rela- 
tions, with  the  rights  and  obligations  of  which  they  are  composed, 
must  yet,  primarily  at  least,  as  is  implied  in  these  three  maxims, 
receive  their  legal  existence  under  some  one  municipal  (national) 
law.' 

state  may,  or  must,  as  such,  be  carried  into  effect  in  another  state,  the  legislative 
power  of  the  former  state  could  be  extended  over  the  latter,  and  in  proportion  dimin- 
ish its  legislative  power  ; — the  chief  attribute  of  sovereignty.  It  is  true  that  the  ap- 
plication and  execution  of  the  foreign  law  would  always  remain  with  the  judicial  and 
administrative  officers  of  the  forum.  But  the  rule  according  to  which  these  officers 
would  decide  and  act  would  have  been  prescribed  by  a  foreign  government.  And  how 
can  they  be  empowered  to  act  according  to  this  rule,  when  they  are  only  the  instru- 
ments or  servants  of  the  government  by  which  they  were  appointed."  To  this  proposi- 
tion the  same  author  states  three  cases  of  exceptions,  allowing  them  to  be  such  in  ap- 
pearance only.  Schaeffner  calls  the  proposition  a  novel  one,  and  denies  its  correctness. 
There  is  probably  no  real  contrariety  of  opinion  between  them.  Apparently  Zacharia, 
in  discriminating  the  law  to  wliich  he  should  attribute  the  relation,  looks  to  the  politi- 
cal authority  which  coercively  maintains  the  rights  and  obligations  in  wliich  it  con- 
sists, and  therefore  speaks  of  it  as  subsisting  under  the  law  of  the  forum  ;  while  the 
other  looks  to  the  legislator  whose  moral  judgment  attributed  those  rights  and  obli- 
gations to  the  persons  between  whom  the  relation  is  maintained,  and  therefore  regards 
the  relation  as  possibly  subsisting  under  the  law  of  a  foreign  state. 

'  The  realizalion — the  actualization — the  carrying-out  of.  The  term  employed  for 
this  by  some  German  writers  of  reputation  is — the  Verwirklichung — the  making  or  the 
being  made  uirklich — real  or  actual.  Another  term  nearly  equivalent  is  the  Geltend- 
maclten — the  making  gellend — available,  or  in  force.  And  this  is  distinguished  from 
the  Ejcistent-uerden — the  becoming,  or  the  being  made  e.\istent.  Thus  it  is  said  by 
SchiEfFner  g  27.  "  A  verj*  different  thing  from  tht  Existent -uerden,  (the  being  made,  or 
the  becoming  existent,)  is  the  G>ltend-mavhen  (the  putting  in  force,  or  the  being  made 
available,)  that  is,  the  assertion  that  a  certain  fact  (legal  effect;  has  become  verwirh- 


60  SPECIES   IN   INTEKNATIONAL    LAW. 

§  69.  Tlie  municipal  (national)  law  of  anj  one  state  may 
contain  rules  of  action  applying  originally,  and  as  a  law  of  local 
origin,  to  the  relations  of  private  persons  within  its  jurisdiction, 
who  are  distinguished  by  the  supreme  power  as  alien,  which 
are  not  rules  that  take  notice  of  the  effects  of  the  laws  of  foreign 
jurisdictions  in  creating  rights  and  obligations  for  those  persons. 
Rules  of  this  kind  can  be  called  international  (as  contrasted  with 
internal)  only  in  being  founded  on  the  simple  distinction  be- 
tween native  and  alien  subjects.'  Tlie  private  international  law 
then,  so  far  as  it  can  be  distinguished  from  the  municipal  (inter- 
nal) law  of  any  one  jurisdiction,  is,  in  its  form  and  manifestation, 
a  rule  regulating  in  that  jurisdiction  the  admission  or  allowance 
of  different  municipal  (internal)  laM's,  or  of  their  effects  ;  being 
properly  called  j^^'ivate,  because  determining  rights  and  obliga- 
tions arising  out  of  relations  of  private  persons :  whether  the 
municipal  (internal)  law,  first  establishing  these  relations,  is 
principally  of  a  national  and  public  character,  or  is  more  strictly 
private. 

§  YO.  Tlie  three  maxims  or  propositions  above  given  can  in 
their  nature  be  only  statements  of  the  self-existent  or  self-depen- 
dent nature  of  nations,  states,  or  sovereignties,  and  therefore 
laivs  in  the  secondary  sense  of  the  word  only.  If  the  attempt  is 
made  to  go  beyond  these,  and  state  a  rule  under  which  this  in- 
ternational recognition  of  municipal  (national)  laws,  (the  possibil- 
ity of  which  only  is  implied  or  stated  in  the  third  maxim,)  should 
take  effect,  or  will  take  effect — a  law  having  the  force  of  a  rule 
of  action — a  law  in  the  primary  sense,  it  is  evident  that  such 
rule  may  be  stated  either  in  the  form  of  a  rule  of  which  states 
or  nations  are  the  subjects,  determining  their  respective  rights 
and  obligations,  or,  in  the  form  of  a  rule  of  which  private  per- 
sons are  the  subjects.  In  the  first  alternative,  the  rule  can  only 
be  law  in  the  imperfect  sense,  or  a  law  of  the  imperfect  kind, 
and  cannot  determine  the  action  of  such  states  or  nations  except 

licht  (realized — actualized — carried  out,)  under  the  jurisdiction  of  a  certain  law.''  But 
Waechter  in  his  treatise  (published  in  the  same  year,  184^1,)  on  the  collision  of  laws 
in  Archiv.  f  d.  Civil.  Praxis,  vol.  2-i,  p.  237,  takes  the  word  vmnrklicht,  as  employed  in 
a  citation  from  Struve,  in  a  sense  which  appears  to  be  direclly  opposite  to  that  above 
given.  The  first  necessity  in  questions  of  this  kind  is  a  received  nomenclature. 
'  Such  as  naturalization  laws,  police  laws  relating  to  immigrants. 


DUTY    OF   TRIBUNALS.  61 

by  being  identified  with  their  several  aiitonoTnic  will  or  consent ; 
and  it  will  be  j!>?/Wi6' international  law,  from  tlie  character  of  the 
persons  upon  whom  it  operates,  or  for  whom  it  is  said  to  be  a 
rule.  In  the  second  alternative  the  rule  may  have  the  coer- 
cive character  of  positive  law,  in  reference  to  the  action  of  private 
persons,  and  be  a  rule  which  judicial  tribunals  may  apply,  or 
will  be  bound  to  apply  in  determining  the  rights  and  obligations 
of  such  persons,  in  relations  in  respect  to  other  persons  and  in 
respect  to  things  ;  being  ^pf^vate  international  law  from  the  char- 
acter of  the  persons  upon  whom  it  operates,  or  for  whom  it  is 
said  to  be  a  rule.  But  it  is  evident  with  regard  to  the  possibility 
of  any  such  rule — a  rule  having  the  character  of  positive  law, — 
that  it  must  be  part  of  some  municipal  (national)  law ;  that  is, 
it  must,  according  to  previous  definition,  be  identified  with,  or 
rather  must  derive  its  existence  from,  the  ascertained  will  of 
some  legislator, — some  political  person  vested  with  the  author- 
ity of  society  or  of  the  state. 

'Now  to  whatever  degree  the  state  or  nation,  or  the  posses- 
sors of  supreme  or  sovereign  power,  may,  in  their  political  entity 
or  personality,  be  bound  (by  public  international  law — the  law 
of  ''positive  morality" — Austin,  ante  §  11,  n.)  to  allow  foreign 
laws  to  take  effect  within  their  own  jurisdiction,  their  judicial 
tribunals  have  the  like  duty,  in  allowing  or  refusing  the  inter- 
national admission  of  foreign  laws,  which  they  have  in  enforcing 
the  municipal  law  strictly  so  called — the  internal  law — the  law 
operating  within  each  national  jurisdiction  irrespectively  of  the 
existence  of  other  such  jurisdictions;  they  must  ascertain  the 
will  of  the  supreme  power  of  the  state  in  reference  to  such  inter- 
national allowance. 

§  71.  It  will  be  remembered  that  the  relations  which  it  was 
supposed  might  be  indeterminable  under  the  legislative  power, 
or  the  law  of  a  single  state  were  herein  before  divided  or  classi- 
fied by  differences  in  the  comparative  effect  of  space  and  time 
in  connecting  their  legal  existence  with  the  legislative  action  of 
more  than  one  state,  {ante  §  65.) 

In  regard  to  the  first  class  of  relations — that  namely  in  which 
the  persons  and  things,  which  are  to  be  the  subjects  and  objects 
of  the  rights  involved  in  those  relations,  are  not  all  supposed  to 


62  THE   TEBM CONFLICT   OF   LAWS. 

be  at  one  time  under  one  and  tlie  same  jurisdiction,  (in  which 
case  the  question,  by  which  legislative  power  the  relation  is  to 
be  determined,  would  precede  the  existence  of  the  relation,  and 
where  it  would  be  impossible  that  the  action  in  which  those 
rights  must  be  manifested  should  take  place  without  some  con- 
current legislative  action  on  the  part  of  the  respective  states 
within  which  those  persons  and  things  should  be  found,  either 
producing  one  common  rule  or  consenting  to  the  controlling  op- 
eration of  rules  proceeding  from  one  or  from  the  other,) — the 
question  of  the  existence  and  determination  of  these  relations, 
when  raised  before  a  judicial  tribunal,  may  appropriately 
receive  the  name  of  a  question  of  the  confiict  of  laws ;  which 
name  has  been  given  by  Huber,  Story,  and  others,  to  cases  de- 
termined by  private  international  law  as  herein  described. 

That  name,  however,  is  evidently  less  appropriate  to  express 
the  question  of  the  existence  and  determination  of  the  second 
class  of  relations,  before  described  :  since,  according  to  the  sup- 
position, the  persons  between  whom  they  are  to  exist,  or  the 
persons  and  things  who  are  to  be  the  subjects  and  objects  of  the 
right  involved  in  that  relation,  are  always  at  some  one  time 
under  the  exclusive  dominion  of  some  one  state. 

§  72.  The  international  determination  of  the  first  class  of 
I'elations  constitutes  one  of  those  topics  of  jurisprudence  wherein 
it  has  been  found  most  difficult  for  judicial  tribunals,  or  for  pri- 
vate jurists  and  law  writers,  to  agree  in  a  ji^n'oW  deductions  from 
elementary  and  necessary  principles.'  Rules,  however,  may 
exist,  in  regard  to  this  class  of  relations,  in  the  jurisprudence  of 
any  one  country,  either  originating  in  positive  legislation  or  in 
judicial  precedent,  which,  of  course,  must  be  taken  to  have  been 
intended  for  jural  rules,  or  rules  founded  in  natural  reason,  and 
not  merely  arbitrary  and  accidental  determinations.  And  so 
far  as  any  rules  are  found  to  have  been  concurrently  adopted  in 
the  jurisprudence  of  difterent  nations,  they  thereby  acquire  the 
character  of  a  universal  j  urisprudence  or  law  of  nations  /  and 
there  is  in  that  fact  an  authority  for  the  judicial  tribunals  of  any 

'  To  these  rules  the  citition  given  hy  Schaeffner,  §  22,  note,  well  applies : — "  Lerser ; 
Med.  ad  Pand.  Sp.  283,  p.  1162.  says  in  regard  to  Farinacius  and  others.  Regulas  in 
illis  multas  inveni,  sed  quando  eas  cum  subjectis  limitationibus  contuli,  ipsarum  regulo- 
mm  nihil  superesse  vidi." 


STATUS   IN   INTERNATIONAL   QUESTIONS.  63 

one  country  or  state,  (in  tlie  silence  of  the  local  legislation  or 
customary  law  on  that  point,)  to  adopt  them,  as  being  presurap 
lively  accordant  with  the  legislative  will  of  the  nation  or  state 
whose  I'uridical  authority  they  exercise.*  But  it  appears  to  have 
been  difficult,  even  by  such  an  a  posteriori  or  inductive  method, 
to  discover  any  liarmonious  and  consistent  system  of  rules  appli- 
cable in  such  cases.'' 

The  determination  of  the  second  class  of  relations  is  simpler, 
because  the  relations  are  first  taken  to  be  in  existence  under  the 
legislative  action  of  one  state  or  nation,  or  one  possessor  of 
sovereign  power,  and  the  question  is  of  their  continuance  or  real- 
ization under  the  legislative  and  juridical  power  of  another. 

§  73.  Since  status  or  personal  condition,  as  defined  in  the 
first  chapter,  consists  principally  in  the  possession  of  individual 
rights,  and  the  relations  of  which  it  is  an  incident  do  not  ;mply 
the  exercise  of  rights  relative  to  specific  things,  it  must  always 
be  at  any  one  time  under  the  legislative  power  of  some  one  state ; 
that  is,  the  state  within  whose  actual  territorial  jurisdiction  the 
natural  person  may  be  found,  whose  status  or  personal  condition 
is  to  be  determined.  So  far,  therefore,  as  it  may  become  a  topic  of 
private  international  law,  it  appears  as  an  incident  of  the  rela- 
tions of  the  second  class  above  described.  That  is  to  say,  the 
status  of  a  natural  person  can  become  a  question  of  private  inter- 
national law,  only  when  such  person  is  supposed  to  have  had  a 
status  or  personal  condition  in  relations  created  under  some  for- 
eign law,  which  relations  being  regarded  as  existing  or  having 
existed  under  the  foreign  law — the  question  is  of  their  idealization, 
actualization,  or  continuance. 

Since  the  inquiries  to  be  pursued  in  the  following  pages  will 
be  limited  to  questions  connected  with  the  law  of  status  or  con- 
dition, private  international  law  will  in  this  chapter  be  further 
considered  only  as  it  may  determine  relations  of  the  second  of 
the  two  classes  above  described. 

'  The  principle — locits  regit  actum,  when  applied  to  this  class  of  cases,  may  however 
be  cited  as  an  example.  And  compare  Savigny :  Ileut.  R.  R.,  B.  3,  c.  i ,  §  348.  The 
eighth  volume  of  this  work  of  Savigny  relates  exclusively  to  the  conflict  of  laws. 

'Saul  i-s.  His  Creditors,  17,  Martin's  Rep.  Louisiana,  .509,  by  the  court:  "  We  know 
of  no  matter  in  jurisprudence  so  unsettled,  or  none  that  should  more  teach  mea  dis- 
trust of  their  own  opinions,  and  charity  for  those  of  others." 


0»|  DISTINCmONS   FOUNDED   OS   SUBJECTION. 

§  74.  Although  the  question  before  the  tribunal  determining 
the  status,  or  condition  of  private  persons  under  international 
law,  regards  the  maintenance  of  legal  relations  of  persons,  or  of 
correlative  rights  and  duties  of  persons,  in  respect  to  persons 
and  things  included  under  a  certain  national  jurisdiction,  those 
relations,  or  those  rights  and  obligations,  are  not,  by  the  very 
implication  of  the  third  maxim,  to  be  regarded  as  entirely  de- 
l)endent,  or  not  so  in  the  first  instance,  upon  that  municipal 
(internal)  law  which  is  the  territorial  law,  or  local  law,  of  that 
jurisdiction  in  which  those  persons  and  things  are  found. 
Whenever  a  question  is  made  of  the  determination,  under  pri- 
vate international  law,  of  rights  and  duties  incident  to  the  class 
of  relations  now  under  consideration,  a  recognition  of  private 
persons  as  aliens,  in  respect  either  of  birth  or  of  domicil,  or  at 
least  as  having  been  anteriorly  subject  to  some  other  jurisdic- 
tion, is  pre-supposed  ;  and  the  private  international  law  (i.  e., 
that  part  of  the  national  law  of  the  jurisdiction  which  is  to  de- 
termine that  question,)  is  applied  as  a  personal  law, — a  law 
attaching  to  certain  persons  in  virtue  of  their  anterior  subjection 
to  a  foreign  jurisdiction,  irrespective  of  the  general  territorial 
operation  of  that  municipal  (internal)  law  oiXhQ  forum  to  which 
they  are,  or  have  been,  alien  in  a  greater  or  less  degree,  or 
under  a  greater  or  less  variety  of  circumstances,  {ante,  §  53.) 

It  was  stated  in  the  first  chapter,  that  the  contrasted  relations 
(conditions)  of  alien  and  native  subjects  are  necessary  or  axio- 
matic ideas  in  international  law,  being  stated  in  tliose  definitions 
which  form  the  first  portion  of  international  law  (public  and 
private)  according  to  the  division  there  given.  But  the  fact  of 
mere  subjection,  independently  of  place  of  birth,  to  different 
jurisdictions,  is  that  upon  which  the  distinction  of  an  inter- 
national law — being  a  rule  determining  the  relations  of  private 
persons,  and  operating  as  part  of  the  municipal  (national)  law 
of  some  one  state,  or  nation — is  founded.  It  being  possible 
that  within  the  jurisdiction  of  any  particular  state  jiersons  may 
be  present  who  have  been  subject  to  the  territorial  jurisdiction 
of  another,  the  laws  of  the  first  may  be  conceived  of  as  making 
no  distinction  between  them  and  others  in  consequence  of  that 
fact.     But  the  laws  of  a  state  are  not  necessarily  nor  usually 


RESULTS   OF   SUBJECTION   BECOGNIZED.  65 

thus  equally  operative.  All  witliir.  a  national  jurisdiction  are 
equally  subject  to  tlie  supreme  power  of  the  state,  but  the  laws 
therein  (i.  e.,  the  national  law,)  may  apply  differently  to  natives, 
and  to  those  originally  coming  from  another  national  jurisdic- 
tion, Tliis  difference  in  the  application  of  the  national  law 
may  be  combined  with  the  recognition  of  the  rights  and  obliga- 
tions of  private  persons  in  relations  caused  by  a  foreign  law  to 
which  they  have  been  previously  subject ;  and  there  may  be  a 
difference  in  the  degree  of  this  recognition,  and  in  the  extent  of 
the  local,  or  territorial  law  of  the  forxim  to  persons  who  are  not 
native,  by  discriminating  between  them  in  respect  to  their 
being  either  permanent  and  domiciled,  or  transient  and  tempo- 
rary subjects.  When  the  previous  actual,  or  territorial  subjec- 
tion of  certain  private  persons  to  a  foreign  law  is  judicially 
recognized  in  the  ybrwm  of  jurisdiction,  and  the  question  is 
made  of  the  realization  or  continuance  therein  of  rights  and  ob- 
ligations of  those  persons  in  relations  existing  under  that  foreign 
law,  then  the  local  or  national  law  operates  as  private  inter- 
national law.  For  though  this  distinction  between  persons  is 
made  under  some  municipal  (national)  law — i.  e.,  some  law 
known  as  the  positive  law  of  some  one  nation,  or  state — that 
law,  being  differently  applied  to  persons  thus  discriminated^  or 
distinguished, — may  be  denominated  international^  because  it 
then  determines  the  operation  of  the  municipal  (national)  laws 
of  different  countries,  or  states.  In  these  cases,  the  relations  of 
certain  persons  are  recognized  simply  as  facts  existing  by  the 
operation  of  a  foreign  law ;  but  the  validity  of  the  rights  and 
obligations  included  in  them  is  determined  solely  by  the  local 
juridical  authority.  And  so  far  as  the  tribunals  of  t\iQ  forum 
are  concerned,  the  relations  existing  under  the  foreign  law  are 
to  be  brought  to  their  judicial  cognizance  by  proof,  like  other 
facts :  they  are  not  legal  effects  which  the  tribunal  is  bound  in- 
dependently to  take  notice  of,' 

§  75,  When  persons  and  things  pass  from  one  national  juris- 
diction into  another,  it  is  impossible,  in  the  nature  of  things, 
that  all  the  relations  in  which  they  were  the  subjects,  or  objects 
of  rights  and  duties  under  the  law  of  their  original  jm*isdiction, 

'  Foelix  :  Dr.  Int.  Pr.,  §  18.     Story:  Conf.  L.,  §  637,  and  the  cases  cited 
& 


60  ITECESSAKY   LIMITS    OF   RECOGNITION. 

should  exist  under  the  jurisdiction  to  which  they  have  been 
removed ;  because  all  the  persons  and  things  which  were  with 
them  the  subjects,  or  objects  of  corresponding  riglitg,  or  duties, 
in  those  relations,  are  not  transferred  with  them  to  the  new 
jurisdiction.  It  is  not,  therefore,  supposable,  when  persons  thus 
pass  from  one  jurisdiction  into  another,  that  all  tlieir  rights  and 
obligations,  existing  under  the  law  of  the  iirst  jurisdiction, 
should  be  maintained  by  the  law  of  the  second.  That  class  of 
rights  of  persons,  which  in  the  first  chapter  were  called  ahso- 
lute,  or  individual  rights,  may  (since  they  exist  in  a  relation  of 
individual  persons  to  the  whole  community,  without  distinction 
of  specific  individuals  in  it,  and  as  rights  of  action  have  no  de- 
tenninate,  or  special  objects,)  continue  to  be,  for  the  subjects  of 
them,  the  same  in  eflect ;  though  the  objects  may  be  difterent, 
and  the  supreme  power  sustaining  them  is  a  different  political 
personality.  But  those  rights  (the  right  to  private  property,  or 
of  private  property,  for  instance,)  so  far  as  they  are  relative  to 
specific  persons  and  things,  and  those  rights  which  were  in  the 
same  chapter  called  relative^  because  arising  under  relations  of 
persons  to  other  determinate  persons,  cannot,  it  is  plain,  subsist 
under  the  law  of  the  new  jurisdiction  unless  the  persons  and 
tilings  which  are  the  relative  subjects  and  objects  of  those  rights 
are  transferred  to  the  new  jurisdiction.  But  it  is  plain  that  so 
far  as  the  action  implied  in  any  legal  relation  continues  to  be 
physically  possible,  notwithstanding  a  change  of  place  on  the 
part  of  the  persons  between  whom,  or  the  persons  and  things  in 
respect  to  whom,  or  to  which  that  relation  has  once  subsisted, 
any  of  the  rights  of  persons  arising  out  of  a  relation  constituted 
by  the  law  of  one  jurisdiction,  may  be  allowed  to  retain  the 
character  of  a  legal  right,  under  the  sovereign  authority  of  the 
new  jurisdiction.  Whenever  this  is  the  case,  the  supreme 
national  authority,  having  independent  power  in  a  specified  ter- 
ritory, adopts  the  law  of  another,  or  allows  it  to  take  effect 
therein  as  a  law  of  foreign  origin ;  though  its  authority  as  laWy 
in  the  strict  sense,  must  always  in  that  jurisdiction  depend  on 
the  local  sovereignty. 

§  T6.  Since,  then,  this  allowance,  or  disallowance,  depends 
on  the  same  authority  as  the  municipal  (internal)  law,  it  must 


ACTION   OF   TRIBUNALS.  6T 

be  ascertained  in  the  same  manner  as  the  n  unicipal  (internal) 
law,  resting  on  that  authority,  is  ascertained.  According  to  the 
view  given  in  the  first  chapter  of  the  manner  in  which  the  will 
of  the  supreme  authority  in  states  becomes  expressed  or  assumes 
the  form  of  law,  that  will  may  be  ascertained  either — 1 ;  from 
the  direct  expression  of  the  will  of  the  state  in  positive  legisla- 
tion, {esto;)  or,  2;  from  an  interpretation  of  natural  reason  by 
tribunals  appointed  by  the  state,  {videtur.)  If  the  sovereign  or 
supreme  power  has  expressed  its  will  by  legislative  enactment 
or  action  having  that  effect,  that  expression  is  equally  authori- 
tative and  controlling  in  this  case  as  in  the  case  of  relations 
falling  under  municipal  law  strictly  so  called,  (the  internal  law.) 
If  no  such  expression  exists,  the  tribunal  must  make  this  allow- 
ance or  disallowance  by  reverting  to  the  law  of  natural  reason, 
as  it  reverts  to  the  same  for  the  presumed  legislative  will  of  the 
sovereign  in  enforcing  the  municipal  or  internal  law.  And, 
however  autonomic  or  independent  in  its  estimate  of  natural 
reason,  as  bearing  on  the  relations  of  nations  to  each  other,  or 
of  its  own  obligations  (under  that  international  law,  which,  as  a 
law  binding  on  states,  is  a  law  in  the  imperfect  sense  only,)  the 
possessor  of  supreme  legislative  power,  or  the  national  sover- 
eignty of  any  state  may  be  when  allowing  or  repudiating  the 
effects  of  foreign  laws,  the  judicial  tribunals  of  any  nation,  at 
the  present  day,  in  pronouncing  a  judgment  upon  the  same  point, 
can  refer  only,  either,  as  has  just  been  said,  to  the  positive  legis- 
lation of  the  sovereign,  or  to  standards  of  natural  reason  which 
have,  by  anterior  judicial  recognition  and  the  implied  sanction 
of  the  sovereign  power  whose  will  they  execute,  acquired  the 
authority  of  law.  These  are — judgments  of  antecedent  tri- 
bunals under  the  same  national  authority  in  like  international 
cases ;  customs  which  have  existed  under  that  authority ;  accepted 
expositions  of  law  by  private  persons ;  and,  in  cases  where  these 
domestic  precedents  do  not  furnish  a  criterion  applicable  to  the 
case  in  question,  the  laws,  usages,  and  judgments  of  other 
nations,  in  respect  to  the  international  recognition  of  the  laws 
of  foreign  states,  may  be  referred  to,  on  the  same  principle  by 
which  such  tribunals  refer  to  the  municipal  (national)  laws  of 
other  nations  for  an  exposition  of  natural  reason  to  be  applied 


,06  JURAL  CHABACTEK — HOW  PRESUMABLE. 

as  their  own  local  or  municipal  (internal)  law — the  principle, 
namely,  that,  from  the  nature  of  society  and  of  states,  the  laws 
of  all  states  are  to  be  taken  to  intend  to  conform  to  natural 
right,  or  are  promulgated  for  jural  rules,  and  may  be  judicially 
referred  to,  by  the  tribunals  of  any  one  nation,  as  an  exposition 
of  natural  reason  to  guide  in  the  administration  of  its  own 
(national)  law — whether  internal  or  international  law — in  cases 
where  the  other  standards  of  the  will  of  the  state  which  are 
more  direct,  do  not  give  a  sufficient  rule.  Tlie  limits  of  an 
autonomous  judgment  on  the  part  of  a  judicial  tribunal  being, 
at  the  present  day,  extremely  narrow. 

§  77.  The  propriety  of  this  reference  by  the  courts  of  any 
one  nation,  is,  as  to  such  courts  in  nations  wherein  laws  have 
long  been  administered,  based  upon  precedent — the  usage  of 
their  predecessoi-s.'  But  the  principle  upon  which  such  refer- 
ence is  made  becomes  itself,  when  once  established,  a  rule  of 
particular  force  in  the  international  recognition  of  relations 
which  have  been  created  by  foreign  law  ;  or — to  employ  a 
diflferent  form  of  expression — becomes  more  directly  operative 
as  a  principle  of  the  international  private  law.  For,  since  the 
tribunal,  in  the  case  supposed,  is  necessarily  proceeding  on  the 
supposition  that  the  state,  where  it  has  not  declared  its  will  by 
positive  legislation,  must  still  be  presumed  to  will  that  which 
is  accordant  with  natural  reason,  it  would  follow — from  the  very 
nature  of  the  assumption,  which  is  above  stated,  in  favor  of  the 
jural  character  of  foreign  laws, — that  the  state  will  recognize 
and  support  foreign  laws  and  their  effects  upon  persons  and 
things  coming  within  its  dominion,  when  those  laws  are  not  con- 
trary to  the  rule  of  right  contained  in  the  municipal  (internal) 
law : '  for  if  such  a  rule  exists  in  that  internal  or  local  law,  and 

'  Smith's  Compend.  Merc.  Law,  p.  6.  "  Here  it  should  be  observed,  that  the  foreign 
laws  and  foreign  lawyers,  who  have  been  just  mentioned  as  having  influenced  the  for- 
mation of  the  mercantile  law  of  this  country,  were  never,  at  any  period,  recognized  by 
the  judges  of  our  courts  as  being  per  se  of  any  authority  whatever.  Respected  the 
rules  which  they  laid  down  may  be,  for  the  learning  and  sagacity  which  they  evince, 
but,  when  they  are  obeyed,  it  is  part  of  the  law  and  custom  of  England,  declared  to  be 
such,  either  by  long  usage  and  tradition,  or  by  the  decisions  of  our  own  courts  of  jus- 
tice, containing  an  enlightened  adaptation  of  ancient  principle  to  modern  con- 
venience," <fec. 

^  Potter  rs.  Brown,  5  East,  530,  by  Lord  Ellenborough.  "  We  always  import,  to- 
gether with  tneir  persons,  the  existing  relations  of  foreigners  as  between  themselves, 


TKUB  BASIS   OF   COMITY.  «W 

it  is  applicable  to  persons  in  circumstances  of  natural  condition 
similar  to  those  in  which  the  persons  known  as  aliens  are  found, 
it  must  control,  so  far  as  applicable,  all  rights  and  obligations 
of  those  aliens,  and  overrule  the  relations  created  by  the  foreign 
law, — by  the  very  supposition  on  which  the  presumption  in 
favor  of  a  judicial  recognition  of  the  effect  of  the  foreign  law  is 
based,  viz. : — that  the  state — the  legislator  of  the  forum  intends 
to  enforce  jural  rules,  or  laws  which  are  rules  of  right — ^us. 

§  78.  It  is  this  principle  arising  out  of  the  jural  nature  of 
society,  or  of  the  state,  and  the  method  in  which  law  is  j  udicially 
ascertained,  which  is  the  true  basis  of,  and  the  warrant  for  that 
judicial  recognition  of  rights  and  obligations  of  private  per- 
sons in  relations  created  by  foreign  laws,'  which  is  commonly 
referred  to  the  operation  of  the  comity  or  good  will  of  nations^ 
and  the  prospect  of  reciprocal  advantage.  That  recognition  or 
allowance  of  the  foreign  law  being  then  supposed  to  depend 
upon  ?i  judicial  estimate  of  what  comity  or  the  prospect  of  re- 
ciprocal advantage  requires  the  nation,  for  which  the  tribunal 
is  acting  juridically,  to  allow. 

It  is  evident  that  if  comity  or  good  will,  or  the  prospect  of 
reciprocal  advantage  is,  or  ought  to  be,  a  motive  acting  on  states 
and  nations — the  possessors  of  sovereign  legislative  power — and 
if  it  does,  in  an  ethical  point  of  view,  require  states  or  nations 
in  their  political  personality  to  allow  foreign  laws  to  operate 
within  their  territory,  or  to  recognize  relations  created  by  for- 
eign laws,  it  is  still  only  a  part  of  pxMic  international  law, 
from  the  character  of  the  persons  upon  whom  it  operates,  and  a 
law  in  tlie  imperfect  sense  only,  or  of  an  imperfect  kind  only — 
a  part  of  positive  morality,  operating  on  states.  And  though 
it  may  be  admitted  that  it  ought  so  to  operate  upon  any  par- 
ticular state,  it  still  will  be  the  duty  of  judicial  tribunals  to 
ascertain  the  will  of  the  state  upon  that  point,  before  allowing 
or  giving  effect  to  the  foreign  law  in  any  case.  It  is  further 
evident  that  when  the  will  of  such  state  on  this  point  has  been 

according  to  the  laws  of  their  respective  communities  ;  except,  indeed,  where  these 
laws  clash  with  the  rights  of  our  own  subjects  here,  and  one  or  other  of  the  laws  must 
necessarily  give  way,  in  which  case  our  own  is  entitled  to  the  preference." 

*  Therefore  this  judicial  recognition  of  foreign  laws  or  of  their  effects,  is  not  derived 
a  priori,  or  founded  on  an  o  jwion  juristical  theory.    See  lieddie's  Inq.  El.  Ac,  p.  230. 


70  HUBEb's    MAXIM9. 

ascertained,  it  is  entirely  immaterial,  in  jurisprudence,  vhe 
science  of  positive  law,  to  inquire  what  may  have  been  the 
motive  acting  on  the  state  or  nation,  exercising  sovereign  legis- 
lative and  juridical  power,  which  induced  it  to  allow  or  require 
this  international  reco<?nition  of  foreign  laws.  The  tribunal  has 
simply  to  consider  it  as  the  rule  of  right  established  by  the  state. 
And  it  would  be,  for  the  tribunal  and  for  private  persons,  equally 
law  and  a  jural  rule  if  it  should  have  been  caused  by  selfish- 
ness or  enmity,  and  be  reciprocally  disadvantageous. 

§  79.  This  doctrine  of  an  inteniational  comity  being  the 
basis  of  the  Judicial  recognition  of  foreign  laws  and  their  effects 
appears  to  have  originated  in  the  third  of  Huber's  three 
maxims,  so  often  cited  in  works  on  international  law.  These 
are,  (Iluberi :  Pr£el.,  Lib.  i.,  Tit.  3.     De  Confl.  L.,  §  2)  :— 

1.  Leges  cujusque  imperii  vim  habent,  intra  terminos  ejus- 
dem  reipublicae,  omnesque  ei  subjectos  obligant,  nee  ultra.  Per 
I.  ult.jf.  de  Jurisdict} 

2.  Pro  subjectis  imperio  habendi  sunt  omnes  qui  intra  ter- 
minos ejusdem  reperiuntur,  sive  in  perpetuum,  si\e  ad  tempus 
ibi  commorentur.     Per  I.  7,  §  10,  in  Jin.  de  Interd.  et  Releg? 

3.  Rectores  imperionim  id  comiter  agunt,  ut  jura  cujusque 
populi  intra  terminos  ejus  exercita  teneant  ubique  suam  vim, 
quatenus  nihil  potestati  aut  juri  alterius  imperantis  ejusque 
civium  praejudicetur. 

The  third  of  these  maxims  resembles  the  third  t*f  the  three 
herein  before  given,  in  being  only  the  statement  of  a  condition 
of  things — a  law  in  the  secondary  sense  :  but  it  differs  in  not 
stating  the  possibility  of  such  international  allowance,  but  the 
fact  that  it  is  actually  made  by  the  rulers  of  empires,  rectores 
imperiorum ;  and  it  differs,  still  further,  in  not  only  stating 
the  fact,  but  also  the  motive  or  reason  which  induces  the  su- 
preme power,  the  rectores  imperiorum,  to  make  that  allowance 
— that  is,  the  motive  of  comity.  But  it  is  not  here  stated  that 
judicial  tribunals,  which  are  not  rectores.imperiorum,  may  or 
do,  from  comity^  make  this  admission  in  any  case,  until  they 
have  ascertained  tliat  it  is  the  will  of  the  sovereign  power  for 

'  This  citation  is  the  same  as  Dig.  L.  ii.,  Tit.  i.,  20. 

'  This  citation  is  the  same  as  Dig.  L.  xlviii.,  Tit  22,  7,  §  10,  in  finem. 


THE   MOTIVE   FOB   THE  TREBDNAL.  71 

whom  they  act  judicially — the  rector  imperii — to  make  it. 
When  that  will  has  been  ascertained,  it  is  immaterial  what  may 
have  been  the  motive  operating  on  the  supreme  power  or  the 
sovereign  source  of  the  national  law.  There  is,  therefore,  in 
this  maxim,  nothing  making  comity  a  judicial  rule — or  some- 
thing, the  extent  and  limits  of  which  are  to  be  judged  of  by 
the  judicial  tribunal. 

§  80.  It  being,  however,  assumed  that  the  actual  legislative 
and  juridical  practice  of  nations  is  one  of  tlie  criteria  by  which 
the  tribunals  of  any  one  nation  are  to  ascertain  that  law  of  natu- 
ral reason  which  they  are  juridically  to  apply  as  the  positive 
law  of  the  state — the  fact  that  different  nations,  (or  the  civilized 
nations  of  Europe  and  America,)  hav%  severally  sanctioned  this 
international  allowance,  so  far  as  not  prejudicial  to  the  jpotestas 
andy^/s  of  the  state,  or  of  its  citizens,  may  be  taken  to  be  an 
authority  for  the  tribunal '  to  make  this  international  allowance 
in  matters  of  private  law,  when  not  contrary  to  the  potestas 
and  j  us  of  the  state,  or  of  its  citizens ;  quatenus  nihil  potestati 
aut  juri  alterius  imperantis  ejusque  civium  praejudicetnr.  These 
words  are  translated  by  Story  :  Conf.  of  L.,  §  29, — "  so  far  as 
they  do  not  prejudice  the  powers  or  rights  of  other  governments 
or  of  their  citizens."  The  word  jutI  here  translated  "  rights 
of,"  &c.,  might  more  correctly  be  translated  law  ;  or,  better— 
laio  and  right :  the  word  jus  having  the  sense  not  only  of  a 
right  but  also  of  a  laio ;  in  the  sense  of  a  rule  of  right,  a  jural 
law — that  which  must  be  judicially  recognized  as  right,  as  well 
as  law.^     But  then  it  is  evident  that  the  tribunal  has  nothing  to 

'  1  Barge  Comm.,  p.  5.  "  Hence,  by  that  which  is  sometimes  called  the  comitas 
gentium,  but  which  is  at  other  times  and  more  properly  called  the  common  necessity  or 
the  mutual  advantage  of  nations,  la  lucessite  du  Men  public  et  general  des  nations,  it  is 
established  as  a  principle  of  international  jurisprudence  that  effect  should  be  given  to 
the  laws  of  another  state  whenever  the  rights  of  a  litigant  before  its  tribunals  are  de- 
rived from,  or  are  dependent  on,  those  laws,  and  when  such  recognition  is  not  prejudi- 
cial to  its  own  interests  or  the  rights  of  its  own  subjects." 

Judge  Bradford,  in  Ex  parte  Dawson,  3  Bradford's  R.,  135,  having  reference  to  the 
action  of  an  English  judicial  tribunal  and  its  obligation  to  recognize  the  effects  of  the 
law  of  the  State  of  New  York  in  the  case,  say.s,  citing  the  above  passage  :  "  It  may 
also  be  safely  laid  down  that  from  comity  and  considerations  of  mutual  interest,  foreign 
states  recognize  and  give  effect  almost  universally  to  those  laws  of  the  domicil,"  &c., 
"  respect  being  had  in  this  particular  to  the  sentence  of  the  appropriate  tribunal  in  the 
place  of  domicil." 

'  The  meaning  of  the  word  jus,  in  Roman  jurisprudence,  will  be  particularly  exam- 
ined Ln  a  succeeding  chapter. 


73  FORCE  OF  THE   PRACTICE   OF   STATES. 

do  with  the  comity  or  any  otlier  motive  which  may  be  supposed 
to  have  acted  on  those  states,  or  which  may  or  may  not,  for  the 
future,  influence  the  sovereign,  rector  imperii,,  whose  judicial 
function  it  exercises.  It  is  enough  for  the  tribunal  that  such 
has  been  the  practice-  of  nations.  Another  statement  of  this 
axiom  by  Huber,  in  the  treatise,  Jus  publicum  Universale, 
Lib.  3,  cap.  8,  §  7,  is  also  cited  by  writers  on  international  law. 
"Summas  potestates  cuj  usque  reipublicae  indulgere  sibi  mutuo, 
nt  jura  legesque  aliorum  in  aliarum  territoriis  effectum  habeant, 
quatenus  sine  praejudicio  indulgentium  fieri  potest.  Ob  re- 
ciprocam  utilitatem  in  disciplinam  juris  gentium  abiit,  ut  ci vitas 
alterius  civitatis  leges  apud  se  valere  patiatur."' 

If  this  maxim  of  Iluljer  is  intended  only  for  a  statement  of 
the  fact  that  this  is  the  practice  of  nations,  it  is  entirely  un- 
necessary to  allege  comity  or  reciprocal  advantage  as  the  cause. 
As  a  principle  of  private  law,  it  is  sufiicient  to  say  that  the  ad- 
mission has  been  so  generally  made  that  it  has  become  a  prin- 
ciple of  universal  jur'isjprudeiice,  which  the  tribunals  of  every 
nation  are  bound,  in  the  absence  of  a  particular  national  rule — 
statutory  or  customary — to  receive  as  a  rule  of  natural  reason 
accepted  by  the  state.  And  this,  perhaps,  was  the  meaning  of 
Huber  in  the  passage  last  cited — in  disciplinam  juris  gentium 
abiit,  ut  civitas  alterius  civitatis  leges  apud  se  valere  patiatur. 
It  is,  however,  evident,  from  the  remarks  in  the  Preelection's 
following  the  three  maxims,  that  he  there  conceived  that  the 
tribunals  were  to  base  their  recognition  and  allowance  of  the 
effects  of  foreign  laws  upon  considerations  of  comity,  recipro- 
cal utility,  (fcc.  And  in  saying  in  that  place  that  the  three 
maxims,  or  this  topic  of  jurisprudence,  belongs  to  the  jus  genr 
tium,  and  not  the  jus  civile,  he  apparently  intends,  by  the  for- 
mer, that  international  law  of  which  nations,  in  their  political 
personality,  are  the  subjects." 

'  So  in  1  Voet,  de  Statutis,  §  1 ;  12,  17.  "  Dein  quid  ex  comitate  gens  genti . . . 
liberaliter  et  officiose  indulgeat,  permittat,  patiatur,  nltro  citroque." 

'  It  will  be  necessary,  hereinafter,  to  show  that  the  term  jus  gentium,  in  the  writings 
of  the  civilians,  has  been  used  iu  two  significations,  the  one  being  the  original  meaning 
which  it  has  in  the  Corpus  Juris  Ci\'ilis,  equivalent  to  universal  jurisprudence  the 
other,  a  modern  meaning  equivalent  to  public  intemaiional  law,  according  to  the  defi- 
nitions given  in  the  first  chapter.  This  double  meaning  has  occasioned  touch  miscon- 
ception and  misquotation.     See  Reddie's  Inq.  Elem.  &c.,  ch.  iv. 


THE  JURISTICAL   ERROE.  73 

§  81.  Tlie  later  writers  following  Huber  have  conbtantly 
.cited  the  axiom  as  implying  that  judicial  tribunals  are  to  regard 
the  comity  of  nations  and  considerations  of  reciprocal  advan- 
tage as  a  criterion  by  which  they  are  to  allow  or  disallow  the 
operation  of  foreign  laws  upon  persons  and  things  within  the 
jurisdiction  of  their  states  ;  or — to  vary  the  form  of  statement 
— that  the  tribunals  are  to  take  into  consideration  whether  out 
of  comity,  or  by,  or  for,  or  under  comity,  the  nation  or  state  is 
bound  to  admit  the  operation  of  the  foreign  laws,  and  then  de- 
termine the  rights  and  obligations  of  private  persons  accord- 
ingly. 

This  idea  of  a  judicial  recognition  of  comity  of  nations,  re- 
ciprocal advantage,  &c., — the  motives  which  are  supposed  to  act 
on  the  supreme  authority — the  rector  imperii,  seems  to  have 
been  seized  upon  from  an  inability  to  discover  what  authority 
a  judicial  tribunal  could  have  in  making  that  practical  recogni- 
tion of  the  effects  of  foreign  laws  which  it  was  plainly  seen  was 
nevertheless  constantly  taking  place.  In  order  to  justify  the 
courts  in  thus  giving  eflfect,  as  it  seemed,  to  a  foreign  law,  the 
courts  were  made  to  assume  the  powers  of  the  state  or  of  the 
sovereign.  They  were  supposed  to  have  abandoned  their  judi- 
cial function  of  applying  the  national  law  (positive  law)  to  pri- 
vate persons,  and  to  have  assumed  to  act  for  the  state  in  its 
political  legislative  capacity,  and  to  decide  what  were  the  dic- 
tates and  requirements  of  a  rule  which,  in  operating  on  the 
state  as  its  subject,  is  a  public  law,  and  a  law  in  the  imperfect 
sense  only  :  while,  in  fact,  neither  comity  nor  any  other  motive 
or  rule  acting  on  states  or  nations  had  anything  to  do  with  the 
judicial  recognition  or  non-recognition  of  the  foreign  law.  The 
state,  i,n  vesting  the  tribunal  with  juridical  power,  and  having 
recognized  all  other  states  as  expository  of  that  rule  of  right 
which  was  to  be  enforced  in  its  own  jurisdiction  as  positive  law, 
had  already  recognized  the  validity  of  the  effects  of  foreign 
laws  within  its  own  jurisdiction,  if  not  contrary  to  the  rule  of 
right  contained  in  its  own  local  municipal  (internal)  law,  and 
this  question  of  contrariety  was  the  only  one  for  the  considera- 
tion of  the  tribunal. 

The  whole  of  this  doctrine  of  the  comity  of  the  nation  ap- 


74  btort's  version  of  the  tiitrd  maxim. 

plied  by  the  court,'  involves  the  fallacy  that  the  tribunal  is  to 
determine  the  rule  of  right  for  the  action  of  the  state,  when  the 
whole  of  jurisprudence  is  founded  on  the  principle  that  the 
state  determines  the  rule  of  right  for  the  action  of  the  tribunal. 
§  82.  Judge  Story,  in  his  Conflict  of  Laws,  §  31,  accepts 
Huber's  three  maxims  for  the  basis  of  private  international  law, 
but  it  will  be  seen  that  in  translating  the  third  maxim  he  intro- 
duces the  word  ought  in  a  manner  not  strictly  justified  by  the 
terms  of  the  original  ;  though,  by  so  wording  it,  the  real  basis 
of  the  action  of  judicial  tribunals  is  indicated.  The  maxim  as 
given  by  Story,  Confl.  of  L.,  §  29,  is:  "The  rulers  of  every 
empire,  from  comity,  admit  that  the  laws  of  every  people  in 
force  within  its  own  limits,  ought  to  have  the  same  force  every 
where,  so  far  as  they  do  not  prejudice  the  powers  or  rights  of 
other  governments,  or  of  their  citizens."  In  Huber's  statement, 
it  is  not  said  that  the  redores  imperii  admit  that  foreign  laws 
ought  to  have  effect,  or  that  it  is  right  that  they  should  have 
effect,  &c.  It  is  merely  said  that,  in  point  of  fact,  they  have 
allowed  them  to  take  effect.  But-  the  practice  thus  stated  by 
Huber  is,  to  the  tribunal  of  the  forum  of  jurisdiction,  the  indi- 
cation that  the  national  law — or  the  author  of  the  national  law, 
does  consider  that  foreign  laws  ought  to  have  that  effect ;  and 

-  13  Peters  R.,  589,  by  Taney,  C.  J.,  citing  Story's  Confl.  of  L.,  §  38.  "  It  is  not  the 
comity  of  the  court,  but  the  comity  of  the  nation,  which  is  administered  and  ascer- 
tained in  the  same  way,  and  guided  by  the  same  reasoning  by  which  all  other  princi- 
ples of  municipal  law  are  ascertained  and  guided."     1  Greenleaf  Evid.,  §  43. 

Therefore,  the  idea  of"  comity  of  nations,"  "  international  comity,"  operating  as  a 
judicial  rule,  has  been  denominated  by  some  authors  a  fiction  of  romance.  SchjefiFner, 
§§  29,  30,  says:  "From  being  jurists  they  became  poets;  inventing  the  fiction,  that 
the  comity  of  the  nation  was  making  place  for  the  foreign  law:  or  else — in  instances 
of  direct  juridical  contradiction  between  the  two  laws — they  played  the  part  of  the 
statesman  instead  of  that  of  the  jurist ;  pointing  out  the  commercial  or  other  dis.idvan- 
tages  which  might  accrue  to  the  subjects  of  their  own  state  if  the  foreign  law  shoiild 
be  disallowed. 

"  This  romantic  idea  of  the  cmnitas  gentium,  originating  in  a  misconception  of  the 
nature  of  law,  and  bearing  a  great  resemblance  to  a  hlocus  hermttique,  lurks  in  many 
of  the  older  treatises,  and  reappears  even  at  the  present  day,  as,  for  example,  in  Story's 
work.  Now,  if  we  observe  closely  how  the  principle  of  the  comitas  gentinm  has  been 
carried  out,  we  become  aware,  to  our  surprise,  that  it  has  never,  in  fact,  been  actually 
applied,  or  at  least  that  in  most  of  the  supposed  cases,  some  principle  entirely  distinct 
from  the  comilas  has  been  appealed  to.  How  could  any  consistent  result  be  attained 
by  following  a  conception  so  utterly  vague  and  unjuristical.  It  is  not  possible,  in  fict, 
even  approximately,  to  decide  correctly  the  simplest  question  of  international  private 
law  by  this  principle.  Where  is  the  beginning  of  the  end  of  comity  ?  How  can  ques- 
tions of  law  be  answered  according  to  political  considerations  which  are  of  all  Others 
he  most  fluctuating?"    (Transl.) 


DOCTKINE   OF   M.    FCELIX.  7^' 

therefore,  it  is  also  to  that  tribunal  its  authorization  in  realizing 
or  maintainino;  the  rights  and  obligations  belonging  to  the  rela- 
tion created  by  the  foreign  laAv.  If  the  state  to  which  the 
tribunal  belongs  had  not  indicated  its  approval  of  this  customary 
action  of  states  or  nations,  the  court  or  tribunal  would  have  no 
power,  from  the  practice  here  stated,  to  maintain  the  effects  of 
foreign  laws  :  whatever  view  it  might  take  of  the  demands  of 
international  comity,  and  the  prospect  of  reciprocal  advantage. 
This  indication  is  found  in  the  customary  law  of  such  state ; 
which,  as  has  been  shown  in  the  first  chapter,  §  36,  recognizes 
other  civilized  states  or  nations  as  the  legitimate  expositors  of 
natural  reason,  and  requires  its  tribunals  to  recognize  a  univer- 
sal jurisprudence,  a  historical  law  of  nations,  ascertained  from 
the  practice  of  all  civilized  nations.  Tlie  motives  for  that  prac- 
tice are  immaterial.  It  is  the  customary  law  of  the  land,  de- 
rived from  the  legislative  and  juridical  practice  of  nations, 
having  an  international  efiect,  which  the  tribunal  applies  under 
this  rule ;  not  the  considerations  of  duty  or  of  advantage  which 
may  be  supposed  to  operate  on  states  and  nations  in  regulating 
their  conduct  by  any  code  of  law,  so  called. 

§  83.  M.  Foelix,  in  his  Droit  International  Prive,  ch.  iii., 
Principes  Fondamentaux,  note,  professes  entire  concurrence 
with  Judge  Story's  view  of  the  principle  of  comity.  "  La  doc- 
trine que  nous  exposons  dans  ce  chaj^itre  est  celle  de  M.  Story; 
nous  Tadoptons  completement."  And  he  expressly  vindicates, 
the  doctrine  of  a  comity  of  nations — international  comity  appli- 
cable by  the  tribunals  ;  that  is,  makes  the  question — what  does 
comity  require?  a  question  for  courts  of  law  to  decide.  In  §11, 
his  language  is — "  Les  legislateurs,  les  authorites  publiques,  les 
tribunaux  et  les  auteurs,  en  admettant  I'application  des  lois 
etrangeres,  se  dirigent  non  pas  d'apres  un  devoir  de  necessite, 
d'apres  une  obligation  dont  rexecution  pent  etre  exigee,  mais 
uniquement  d'apres  des  considerations  de  utilite  et  de  conve- 
nance  reciproque  entre  les  nations  (ex  comitate  gentium,  ob  re- 
ciprocam  utilitatem,")  &c. — going  on  to  describe  the  motives 
which  may  and  do  operate  on  sovereign  states,  in  allowing  a 
foreign  law  to  operate  :  but  making  no  distinction  between  the 
functions  of  the  judge  and  the  legislator,  and  as  appears  in  the 


76  IMPORTANCE   OF  THE   DISTINCTION. 

citation  here  given,  even  putting  administrative  oflScers — les 
autorites  jpvhliques^  and  the  publicists — hs  auteurs^  all  in  the 
same  juridical  position. 

In  another  part  of  the  same  section,  M.  Foelix  speaks  of  the 
force  of  the  practice  of  nations  in  this  respect  as  a  juridical 
authority  ;  meaning,  apparently,  that  this  practice  is  the  warrant 
for  the  admission  or  application  of  foreign  laws  by  judicial 
tribunals. — "  Mais  ce  qu'il  y  a  de  certain  c'est  qu'aujourd'hui 
toutes  les  nations  ont  adopte  en pn?ic?'j)e,  I'application  dans  leurs 
territoires  des  lois  etrangeres,  sauf  toutefois  les  restrictions 
exigees  par  le  droit  de  souverainete  et  de  I'interet  de  leur  propres 
sujets."  And  near  the  end  of  the  chapter — "  L'usage  des 
nations  a  ctabli,  ^our  leur  avantage  reciproqne,  et  dans  cer- 
tains cas,  I'effet  des  lois  etrangeres;"  without,  however, 
stating  explicitly  whether  the  tribunal  is  bound  to  regulate  its 
decisions  by  this  "  usage  des  nations,"  or  is  to  consider  comity 
and  "avantage  reciproque,"  before  making  the  allowance. 

§  84.  If  it  were  simply  stated  that  the  custom  of  nations 
having  been  comiter — that  is,  either  in  a  way  which  shows 
comity  and  good  will,  or  prompted  by  comity  and  the  hope  of 
reciprocal  advantage,  to  require  their  judicial  tribunals  to  main- 
tain the  relations  created  by  foreign  laws  when  not  contrary  to 
the  rule  of  right  established  by  the  local  law,  or,  in  the  lan- 
guage of  Huber — "  quatenus  nihil  potestati  et  juri  alterius 
'  imperantis  ant  ejusdcm  civium  pra^judicetur ; "  or,  in  the  lan- 
guage of  M.  Fffilix — "sauf  toutefois  les  restrictions  exigees  par 
le  droit  de  souverainete  et  de  Tint^ret  de  leur  propres  sujets," — 
therefore  the  tribunals  of  any  one  nation  are  bound  to  carry  out 
or  maintain  the  relations  created  by  foreign  laws,  there  would 
be  no  practical  objection  to  the  allegation  that  the  political 
cause  of  that  admission  is  the  good  will  of  the  nation  and  the 
prospect  of  reciprocal  benefit ;  and  there  would  be  very  little 
practical  utility  in  the  attempt  which  has  here  been  made  to 
discriminate  the  true  theory  of  the  judicial  recognition  of  foreign 
laws.  The  question  before  the  tribunal  would,  under  either 
view,  practically  be  decided  by  the  same  inquiry — that  is, 
whether  the  relation  created  by  the  foreign  law  is  contrary  to 
the  rule  of  right— r^c>^t^6-^a^i  et  juri  contained  in  the  local  law,  as 


ANOTHER  ERROR ^IT8  TENDENCY.  T7 

before  explained.  But  it  is  evident  that  the  effect  of  basing 
the  historical  fact  of  this  customary  judicial  recognition  upon 
comity  has  been  to  induce  judges  to  assume  the  part  of  diplo- 
matists, acting  for  the  state  or  nation  in  its  integral  political 
personality,  and  to  decide  matters  of  private  right  (the  rights 
and  obligations  of  private  persons)  by  political  considerations. 
And  there  is  much  in  the  writings  of  Story,  Fcelix,  and  others, 
to  sanction  this  practice. 

Tliis  tendency,  which  is  no  where  more  apparent  than  in  the 
juridical  literature  of  the  United  States,  has  in  a  great  degree 
been  caused  by  the  supposed  necessity  of  a  judicial  protest 
against  another  misconception,  entertained  by  some  few  writers 
on  these  questions,  who  hold  that  a  state  may  be  hound  (as  if  by 
positive  law)  to  admit  foreign  laws  to  operate  within  its  territory, 
if  not  actually  injurious  to  its  political  sovereignty.  Story, 
Conf.  of  L.  §  33,  observes,  "  It  has  been  thought  by  some  jurists 
that  the  term  '  comity  '  is  not  sufficiently  expressive  of  the  obli- 
gation of  nations  to  give  effect  to  foreign  laws  when  they  are  not 
prejudicial  to  their  own  rights  and  interests.  And  it  has  been 
suggested  that  the  doctrine  rests  on  a  deeper  foundation ;  that  it 
is  not  so  much  a  matter  of  comity,  or  courtesy,  as  a  matter  of 
paramount  moral  duty,"  (citing  Livermore  :  Dissertation  on  the 
contrariety  of  laws,  p.  26  to  p.  30.)  But  these  jurists  also  make 
this  supposed  duty  of  the  state  the  basis  of  the  action  of  the  tri- 
bunal. InTow,  the  duty  of  the  state  is  evidently  beyond  the 
action  of  its  own  judicial  officers.  The  admission,  to  whatever 
degree  it  may  be  sanctioned  by  the  state,  may  have  resulted 
from  motives  of  comity,  or  from  a  sense  of  duty.  But  if  comity, 
or  any  thing  else,  is  conceived  of  as  a  necessarily  binding  mea- 
sure of  the  degree  in  which  this  judicial  admission  shall  take 
place,  then  a  rule,  operating  as  positive  law,  is  assumed  to  have 
determined  the  juridical  action  of  the  state,  when,  in  jurispru- 
dence— the  science  of  what  law  is,  the  action  of  the  state  is  the 
only  possible  criterion  of  the  rule.  The  comity  of  nations,  ope- 
rating as  laio  within  any  one  national  jurisdiction,  will  be  only 
whatever  the  possessor  of  supreme  legislative  power  therein 
allows  for  comity,  or  by  comity. 

Jm-ists,  who,  on  the  other  hand,  liave  asserted  that  absolute 


78  ERROB   OF   SUBJECTIVE   VIEWS. 

independence  of  the  state  in  this  mutter  which  is  a  necessary  con- 
sequence of  fundamental  principles,  have  apparently  been  unable 
to  distinguish  between  the  different  positions  of  the  state  (actinp^ 
under  a  law  of  the  imperfect  kind)  and  the  trihunal  (authorized 
only  to  apply  positive  law) :  not  remembering  that  though  the 
state  is  not  bound  to  admit  the  foreign  law,  yet  its  tribunals  may 
be  bound  to  admit  it  or  recognize  its  effects ;  though  they  are 
bound  to  do  so,  and  can  do  so,  only  so  far  as  the  state  may  have 
indicated  its  will  on  the  point.  Therefore,  in  proposing  to  enforce 
that  nde  which  the  state  has  sanctioned  as  right,  the  tribunals 
have  conceived  themselves  as  determining  also  what  the  state 
ought  to  sanction  as  right.  Or,  to  resort  to  the  language  of  Ger- 
man (Kantian)  metaphysics,  the  law  they  have  applied  in  these 
cases  has  been  a  subjective  and  not  an  objective  conception  of  Ae 
rule  of  action.' 

'  Waechter,  on  the  Collision  of  the  private  laws  of  diflferent  States,  (Archiv.  f.  d. 
Civil.  Pr.  B.  24,  p.  238.)     Transl. 

"  It  is  agreed  on  all  hands,  and  onr  laws  unmistakeably  declare,  that  the  law  de- 
rives its  validity  from  itself,  from  the  moment  of  its  being  formally  promulgated,  uncon- 
ditionally, and  without  reference  to  the  suhjective  opinion  of  individual  members  of  the 
state  in  respect  to  its  intrinsic  merit  and  accordance  with  justice  ;  that  the  requisition 
of  a  constitutional  form  and  the  limits  of  a  constitutional  power  alone  determine  ita 
validity,  and  not  the  nature  of  a  law  according  to  subjective  theories.  The  judge  is 
simply  the  instrument  of  legislative  will,  declared  in  a  certain  formally  legal  manner, 
(the  common  will,  to  which  each  individual  will  in  the  state  must  be  unconditionally 
subject)  and  this  law  it  is  the  province  of  the  judge  to  apply,  without  considering 
whether  it  is  just  or  unjust,  suitable  or  unsuitable,  conformable  or  not  conformable,  in 
his  subjective  conception,  to  the  nature  of  a  law ;  and  the  citizen  is  equally  bound  to 
submit  himself  to  this  general  will.  If,  for  example,  the  law  of  a  state  expressly  de- 
termines according  to  which  rule  a  relation  created  in  a  foreign  country  is  to  be  adju- 
dicated— whether  by  the  local  law  of  the  forum,  or  by  that  of  the  foreign  countrj-,  the 
judge  in  that  state  is  bound  to  decide  accordingly  ;  even  if  such  adjudication  may  in 
itself  be  called  inconvenient,  unjust,  or  contrary  to  the  natural  requisitions  of  a  law. 
»  *  *  »  -j-jjg  possessor  of  legislative  power,  in  making  a  statutory  determination 
of  the  question,  will  regard  it  from  two  several  points  of  view ;  considering  on  the  one 
side — the  interests  of  the  local  juridical  system,  the  exclusion  therefrom  of  discordant 
elements  and  the  maintenance  of  injunctions  based  on  high  purposes  and  the  requisites 
of  a  jural  society,  and  of  the  dignity  and  independence  of  its  juridical  power ; — on  the 
other  side — the  considerations  of  international  justice  which  here  become  operative,  and 
which  demand  the  recognition  of  the  legal  capacity  of  the  foreigner  as  well  as  that  of  the 
citizen,  and  also,  in  many  instances,  make  the  allowance  of  foreign  laws  advisable. — 
But  though  tliese  considerations  of  utility,  reasonableness,  friendly  understanding,  natu- 
ral law  and  the  like  may,  and  in  a  certain  degree  ought  to  influence  the  legislator, 
especially  in  forming  international  compacts  respecting  these  questions,  these  are  not 
matters  for  a  judicial  officer  to  take  into  consideration.  He  has  only  to  inquire  what 
the  juridical  will  of  his  sovereign  or  the  positive  law  of  his  own  state  may  have  deter- 
mined on  these  points."  And,  in  a  note,  "  The  different  positions  of  the  judicial  officer 
and  of  the  legislator  are  too  often  conibunded,  in  treating  of  this  topic  of  jurispru- 
dence." 

Savigny,  Heut.  R.  R.,  B.  3,  c.  1,  §  348,  citing  this  passage  from  Waechter,  thinks 


MEASUKE   OF   RIGHT ^WHERE  FOUND.  79 

§  85.  But,  irrespectively  of  the  method  or  principle  by  which 
the  judicial  tribunal  will  have  authority,  in  any  case,  to  recognize 
and  maintain  relations  created  by  foreign  laws, — before  the 
maxim  as  herein  before  stated,  (§  77,)  or  as  stated  by  lluber  and 
Story,  can  be  practically  applied  by  a  tribunal  supposed  to  have 
jurisdiction  of  an  alien,  that  tribunal  must  be  furnished  with  a 
test  by  which  to  know  in  what  cases  the  foreign  law,  if  allowed 
to  take  effect,  would  conflict  with  the  potestas  and  jus — "  the 
jpower  or  rights  of  its  own  government  and  its  citizens."  Or, 
according  to  the  translation  herein  before  given,  (§  80)  of  the 
word  jus  and  the  a  priori  view  taken  of  the  foundation  for 
the  international  admission  of  foreign  laws,  (§  77,)  tliat  tribunal, 
— admitting  the  presumption  to  be  in  favor  of  their  admission — 
must  still  compare  the  foreign  law  with  the  -measure  of  right  con- 
tained in  the  local  law, — its  own  municipal  or  internal  law.  In 
this  connexion  the  potestas  and  jus  of  a  state  may  be  taken  to 
be  equivalent  to  its  public  and  private  municipal  law,  which  are 
necessarily  taken  in  its  own  courts  to  be  jural  rules, — rules  ac- 
cordant with  natural  right  or  natural  reason. 

§  86.  Laws  which  differ  in  their  national  source  and  char- 
acter, maybe  called  the  same  or  similar  laws,  when  each,,  within 
its  own  jurisdiction,  produces  similar  correlative  rights  and  ob- 
ligations between  persons  in  similar  circumstances  of  natural 
condition.  Any  two  such  laws,  must,  in  that  case,  be  taken  by 
the  tribunals  of  the  respective  authors  of  each  to  be  equally 
correspondent  with  natural  reason ;  or,  to  change  the  form  of 
expression,  rights  and  obligations  so  produced  by  one  national 
law,  must  be  taken,  in  the  jurisdiction  of  the  other  national 
law,  to  be  correspondent  with  natural  reason.  And  if  the 
persons  and  things  who  are  the  subjects  and  objects  of  these 
rights  and  obligations  pass  from  the  jurisdiction  of  one  law  to 
that  of  another,  the  foreign  law  may  be  taken,  by  the  tri- 
bunals of  the  latter,  to  be  consistent  with  the  potestas  and  jus  of 
the  latter — following  the  terms  of  Huber's  maxim  :    and   the 

it  too  restrictive  of  the  judicial  function:  Savigny  attributing  a  greater  relative  im- 
portance to  judicial  tribunals  as  a  source  of  law.  But  compare  Fa-lix  :  Dr.  Internat. 
Pr.,  Pref.  v.  vi.  n,  on  the  importance  in  juristical  literature  of  distinguishing  between 
a  priori  and  a  ponteriori  doctrines. 


80  DIFFERENCES   EN   EXTENT   OF   THE   NATIONAL   LAW. 

foreign  law  be  allowed  international  recognition  and  support ; 
having  then,  in  fact,  a  personal  extent  in  a  new  forum.' 

§  87.  Every  national  law  is  necessarily  taken,  by  its  own 
author  and  tribunals,  to  be  rightful  in  the  circumstances  and  for 
the  persons  to  whom  it  is  applied.  But  even  if  laws  of  dif- 
ferent national  origin  should,  each  in  its  own  jurisdiction,  create 
different  relations  from  those  which  would  be  created  by  the 
other,  in  the  jurisdiction  of  that  other,  in  reference  to  similar 
persons  and  things,  (in  which  case  the  two  laws  could  not  be 
said  to  agree  in  a  judgment  of  the  dictates  of  natural  reason), 
yet  it  does  not  follow  of  necessity  that  they  are  opposed  in  such 
judgment,  or  that  the  tribunals  of  either  jurisdiction  should 
deny  a  jural  character  to  the  laws  of  the  other,  operating  in  the 
jurisdiction  of  that  other,  or  that  either  should  refuse  to  ac- 
knowledge any  of  the  effects  and  consequences  of  the  law  of 
that  other,  in  the  relations  of  persons  formerly  subject  thereto, 
who  might  afterwards  pass  under  or  be  found  within  its  0"«ti 
jurisdiction.  For  thougli  every  principle  entering  into  the  muni- 
cipal (internal)  law  of  a  state  must  be  taken  by  its  tribunals  to  be  a 
jural  law,  and  accordant  with  natural  reason,  it  is,  in  the  nature  of 
the  case,  first  promulgated  as  a  law  for  persons  and  things  within 
its  several  territorial  jurisdiction."  But  when  any  distinction  of 
persons  as  alien  or  domiciled  is  made  then  the  question  of  the 
extent  of  the  principles  of  the  local  (internal)  law,  is  to  be  deter- 
mined judicially;  looking  to  the  intention  of  the  supreme  power. 
For  a  principle  of  the  local  law  may  be  intended  to  apply  to 
one  or  more  specified  persons,  or  to  a  class  of  persons,  or  to  all 
persons  indifferently,  within  the  jurisdiction.  It  may  be  intended 
to  affect  the  relations  of  those  persons  only  who  are  domiciled 
or  native  subjects,  or  of  those  only  who  are  aliens  to  tlie  juris- 
diction, or  it  may  apply  to  all  human  beings  generally,  as  the 
objects  and  agents  of  that  action  in  a  civil  state  which  tlie  law 

»  See  ante,  %%  53-56. 

"  "  For  there  are  in  nature  certain  fountains  of  justice  whence  all  civil  laws  are  de- 
rived, but  as  streams  ;  and  like  as  waters  do  take  tinctures  and  tastes  from  the  soil 
through  which  they  run,  so    do  civil  laws  vary  according  to   the  regions   and  govern- 
ments where  they  are  planted,  though  they  proceed  from  thfe  same   fountain."      Bacon  " 
Adv.  Learn.  B.  II.  c  8.     Works,  vol.  I.  238.  Am.  Ed. 

Montesquieu  :    Spirit  of  Laws,  Book  I,  c.  3. 

Scaccia :  Tractatus  de  Commer.,  Qusest.  vu.  par.  u.  ampl.  19,  §  19, 


THE   JUDICIAL    RULE    STATED.  81 

contemplates.  Tlie  judicial  officer,  while  enforcing  the  local 
law  as  the  rule  of  right,  must  apply  it  according  to  the  limita- 
tions and  with  the  extent  intended  by  the  supreme  sovereign 
will.  And  in  the  jurisprudence  of  every  state  its  own  laws  may 
be  distinguished  as  being  jural,  either  by  being  merely  expedi- 
ent and  suitable  to  circumstances  of  position  and  character 
peculiar  to  itself,  or  jural  by  enforcing  obligations  founded  on 
the  nature  of  man  and  co-extensive  with  human  existence; 
(though  this  distinction  is  the  growth  of  an  advanced  stage  of 
jurisprudence,  as  will  be  shown.)  In  other  words,  although  the 
municipal  (internal)  law  of  any  nation  is  always  to  be  taken  as 
a  rule  of  right  for  its  own  national  domain,  it  does  not  follow 
that  it  has  been  asserted  by  its  author  for  a  rule  of  universal 
obligation,  or  as  the  rule  which  ought  to  be  everywhere  applied 
to  persons  and  things  in  like  circumstances  ;  in  such  a  sense  that 
the  tribunals  of  that  nation  are  bound  to  consider  every  rule 
contrary  to  natural  reason  which  should  produce  effects  unknown 
to  the  local  law. 

§  88.  When,  therefore,  we  pass  beyond  that  portion  of  inter- 
national law  which  consists  in  necessary  axiomatic  principles, 
recognized  in  the  very  existence  of  states  or  nations  (and  which 
includes  the  three  axiomatic  maxims  herein  before  given,  §  63, 
67,)  to  that  portion  which  becomes  a  rule  of  action  and  a  law  in 
the  primary  sense  for  judicial  tribunals,  in  making  that  interna- 
tional recognition  and  allowance  of  foreign  laws  which  is  only 
supposed  in  the  third  of  those  maxims,  that  part  which,  though 
dejjendent  for  its  force  as  law  upon  the  autonomous  and  uncon- 
trolled action  of  single  states,  and  therefore,  not  a  law  in  the 
strict  sense  for  the  state,  is  yet  a  law  in  the  strict  sense  for  the 
judicial  tribunal  and  for  private  persons — private  international 
law,  included  in  the  7iati on al  law  of  the  forum — the  first,  or  sim- 
plest general  principle  which  may  be  stated  for  such  law,  seems 
to  be  this  : — That  relations  of  persons  and  their  constituent  rights 
and  obligations^  existing  under  the  law  and  jurisdiction  of  one 
state  are  to  he  judicially  admitted  to  international  recognition 
{that  is,  he  allowed  to  have  legal  effect)  within  the  juinsdiction  of 
other  states,  when  they  are  not  inconsistent  with  those  principles 
which  in  the  jurisdiction  of  the  latter  are  juindically  known  as 


82  ITS   AUTHORITY   AS   POSITIVE   LAW. 

principles  of  universal  personal  application  and  extent^  or  which 
the  local  law  applies  to  all  natural  persons  within  its  power  and 
territorial  jurisdiction.^  And  tliis  will  include  the  test  for  the 
admission  of  foreign  laws,  which  is  implied  in  Iluber's  third 
maxim — the  power  and  law  of  right^ — potestas  and  jus^  of  the 
nation  ;  or  that  given  by  Story's  version  of  the  same  as  the  limits 
of  comity, — "  the  known  policy  and  interest "  of  the  state  in 
which  is  supposed  to  be  the  forum  of  jurisdiction.  For  the  power 
(sovereignty)  and  jural  character  of  a  state  lie  at  the  foundation 
of  its  whole  law,  public  or  private,  constituting  the  objects  of  its 
existence  as  a  part  of  political  society,  which  are  considered  by 
it  in  the  minutest  application  of  law,  and  must  be  judicially  re- 
garded as  the  policy  and  interest  of  every  state,  which  it  main- 
tains wherever  it  acts  as  a  source  of  law,  or  which  it  ai)plics  to 
all  persons  within  its  jurisdiction. 

This  principle  so  stated  may  be  regarded  as  law, — in  the 
sense  of  a  rule  of  action  which  is  applicable  by  judicial  tribu- 
nals ;  though,  in  the  nature  of  the  case,  it  cannot  acquire  the 
force  of  a  rule  to  which  the  state  is  subject,  as  nndcr  a  law  in 
the  strict  and  proper  sense  of  the  word.  And  though,  under 
this  rule,  the  foreign  law  may  be  said  to  produce  legal  effects, 
the  authority  which  gives  it  its  coercive  force  over  pi-ivate  per- 
sons and  the  legislative  will  which  directs  the  tribunal  to  apply 
it  is  always  that  of  the  nation  having  supreme  power  in  the 
forum.  Therefore,  the  law  which  causes  the  legal  effect  to  be 
realized  or  actualized  is  not  the  law  of  the  foreign  country,  but 
that  of  the  forum.*  Tlie  law  of  the  foreign  country  does  not 
operate  in  the  forum,  but  it  is  only  a  fact  or  circumstance  uj^on 
which  the  local  juridical  power  operates ;  and  therefore  the 
foreign  law  is  always  to  be  proved  like  any  other  fact." 

§  89.  But  since  there  may  be  recognized  exceptions  to  the 
extent  of  ever}'  general  rule,  there  may,  in  anyone  jurisdiction, 
be  a  person  or  persons  whose  relations  to  other  persons  and  to 

'  Tlie  rule  given  by  Schipffner,  §  22,  for  the  most  general  one,  may  be  translated, 
"  Each  legal  relation  is  to  be  adjudicated  according  to  the  law  of  the  state  wherein 
It  has  become  existent,  (wo  es  existent  geworden  ist.)     And  with  this,  regard  must  be 
paid  to  those  laws  whose  whole  design  is  to  cause  a  legal  relation  to  be  recognized  as 
»uch  only  when  it  accords  with  those  laws." 

^  See  ante,  §  67,  and  note.  '  See  on<«,  §  74. 


LIMITS   IN    ATTRIBU'nON    OF   UNIVERSALITY.  83 

tliitifjs  are,  by  force  of  certain  local  circumstances,  reg^arded  hy 
tlic  sujireine  power  as  being  specially  exempt  from  the  opera- 
tion of  rules  or  principles  to  which,  irrespectively  of  those  local 
circumstances,  a  universal  personal  extent  is  attributed  ;  and  in 
this  case,  notwithstanding  the  actual  exception,  under  the  law 
of  ihefoinim^  (the  internal  law,)  to  the  universal  extent  of  these 
rules  or  principles,  they  must  still,  in  their  otherwise  universal 
extent,  be  judicially  applied  to  limit  the  effects  of  foreign  laws 
in  the  majiner  above  indicated. 

§  00.  But  if  a  relation  may  thus  have  a  jural  existence  in  a 
certain  national  jurisdiction,  though  contrary  to  principles  hav- 
ing an  otherwise  universal  personal  extent,  there  might,  in  other 
countries,  be  legal  relations  which,  though  contrary  to  the  same 
principles,  should  be  equally  accordant  with  natural  reason  in 
and  for  the  local  circumstances  of  such  other  countries.  And  when 
the  pereons  who  sustained  rights  and  obligations  in  those  rela- 
tions have  passed  into  other  dominions,  in  which  the  universal 
personal  extent  of  a  principle  having  a  contrary  effect  will  pre- 
vent their  continuance,  still  the  action  arising  out  of  those  rela- 
tions may  be  regarded  as  having  been  lawful  in  their  original 
forum, — ^^the  forum  domicilii — though  in  the  new  forum> — the 
forum  of  jurisdiction,  they  can  no  longer  continue. 

§  91.  The  effect  of  laws  having  this  universal  extent  must 
be,  like  that  of  every  other,  to  create  relations  and  to  attribute 
rights  and  their  correlative  duties,  (§22.)  The  rights  so  attri- 
buted by  these  laws  must  be  in  either  individual  (absolute)  or 
relative.  But  rights  ordinarily  known  as  relative  are  the  attri- 
butes of  particular  persons,  in  specific  relations  to  other  par- 
ticular persons,  ( §  40. )  A  legal  capacity  for  those  rights,  which 
is  in  itself,  in  some  sense,  an  individual  right,  may  be  univer- 
sally attributed  ;  though,  in  the  nature  of  the  case,  the  same 
relative  rights  cannot  be  attributed  to  all.  Individual  or  abso- 
lute rights,  however,  which  exist  in  relations  of  one  individual 
to  all  persons  in  the  community  in  which  such  individual  may 
be  found,  may  be  attributed  to  all  persons  constituting  that  com- 
munity. The  laws,  therefore,  which,  in  having  universal  per- 
sonal extent,  control  the  international  admission  of  the  effects 
of  foreign  laws  in  reference  to  the  status  of  pri  vate  persons,  will 


fi4  CEITERIA    OF  THE   EXTENT   OF   LAWS. 

principally  be  such  as  attribute  some  individual  rigbt  with  its 
correspondent  obligations. 

§  92.  This  international  comparison  of  foreign  laws  with 
the  local  or  municipal  law  and  a  univei-sally  applicable  rule 
of  right  contained  therein,  must  always  be,  in  its  earliest  oc- 
currence, an  autonomic  discrimination  on  the  part  of  the  tribu- 
nal. That  is,  supposing  such  international  question  to  have 
arisen  for  the  first  time,  it  would  depend  upon  the  unsupported 
moral  sense — the  conscientious  judgment  of  the  tribunal,  {arhi- 
tHum  boni  viri,)  in  the  absence  of  any  positive  legislation  :  every 
such  judgment  becoming,  of  course,  a  precedent  and  a  law  for 
succeeding  tribunals,  acting  under  the  same  national  authority; 
by  which,  in  course  of  time,  an  ascertained  customary  private 
international  law  arises,  in  and  for  that  jurisdiction. 

This  juridical  act  of  admitting  or  rejecting  the  effects  of  for- 
eign laws,  on  the  ground  of  their  being  repugnant  or  otherwise 
to  principles  of  the  local  law,  which  are  applicable  to  all  per- 
sons in  certain  circumstances  of  natural  condition,  is,  strictly 
speaking,  the  act  of  judicial  tribunals  only.  It  is,  however,  in 
a  certain  degree,  conceivable  as  being  the  act  of  a  legislator 
also.     (See  ^ost,  §  102.) 

§  93.  But,  in  whatever  way  manifested,  this  juridical  action, 
when  it  has  taken  place  on  the  part  of  various  nations,  forms 
one  of  those  criteria  by  which  the  tribunals  of  any  one  state 
may  determine  what  principles,  or  rules,  shall  be  taken  to  be 
rightful,  or  rules  accordant  with  natural  reason,  and  applicable 
as  the  presumptive  will  of  the  state  under  whose  authority  they 
act ;  and  also  to  determine  the  personal  extent  of  those  rules : 
that  is,  in  the  absence  of  positive  legislation,  or  of  precedents 
of  local  origin,  {ante,  §  33.)  And  it  is  to  be  observed  that,  in 
making  this  discrimination  of  laws  which  shall  have  a  per- 
sonal extent  and  international  recognition  in  some  other  juris- 
diction than  that  in  which  they  were  first  enforced,  the  practice 
of  other  nations  in  similar  cases  has  a  more  original  and  in- 
trinsic force,  as  an  intenuitional  precedent,  (or  a  precedent  of 
private  intemational  law,)  for  the  tribunals  of  any  one  state, 
than  foreign  law  and  jurisprudence  has,  as  an  exposition  of 
right  in  cases  falling  under  the  department  of  municipal  (inter- 


ORIGIN   OF   A    UNIVERSAL   JURISPRUDENCE.  85 

nal)  law.  Because  it  is  onlj  hy  supposing  the  existence  of  in- 
dependent jurisdictions,  and  a  judgment  of  the  tribunals  of  one, 
in  allowing  or  disallowing  the  eifects  of  another's  laws,  that 
there  can  be  any  exemplification  of  a  judgment,  by  the  recog- 
nized interpreters  of  the  will  of  states,  deciding  what  effects 
produced  by  the  laws  of  one  state  are  incompatible  with  the 
power  and  law  of  right — potestas  et  jus — of  another,  and  what 
principles  of  the  law  of  particular  states  are  to  be  taken  to  have 
universal  personal  extent  under  the  jurisdiction  of  those  states, 
or  constant  application  to  all  persons  in  certain  circumstances 
of  natural  condition. 

§  94.  But  in  the  continuous  repetition  of  similar  judgments 
by  the  tribunals  and  legislators  of  different  nations  through  a 
long  period  of  time,  and  the  mutual  reference  made  by  them 
to  such  judgments ;  together  with  the  customarily  received 
comments  of  private  writers  of  various  nations  upon  the  same, 
based  upon  the  idea  that  such  judgments  contain  an  exposition 
of  natural  reason,  some  principles,  from  being  constantly  recog- 
nized by  many  different  nations,  will  acquire,  in  the  jurispru- 
dence of  any  one  nation,  the  known  character  of  'universal  prin- 
cij)h's,  or  principles  of  a  iiniversal  jurisprudence.  For  though, 
taking  law  in  the  strict  sense  of  the  word,  jurisprudence  is  the 
science  of  the  law  of  some  one  country  or  nation,  (§  18,)  yet,  by 
distinguishing  (national)  law  into  municipal  (internal)  and  in- 
ternational, and  by  the  application  of  the  latter  to  the  relations 
of  persons  formerly  subject  to  foreign  jurisdictions,  a  portion  of 
the  jurisprudence  of  each  country  will  be  identified  with  the 
science  of  a  universal  law,  or  law  of  nations.  This,  though 
dependent  on.  the  supreme  national  power  for  its  continuance, 
or  coercive  effect  within  the  jurisdiction  of  that  nation,  may 
yet,  by  its  tribunals,  be  considered  principles  presumed  to  have 
universal  territorial  extent  and  obligation,  and  to  have  legal 
force  distinct  from  those  rules  or  laws  which  the  state  may  pro- 
mulgate as  originating  in  its  own  se2:)arate  juridical  or  legislative 
power  :  which  last,  though  equally  jural, — or  equally  intended 
to  conform  to  natural  reason, — are  promulgated  as  law  for  one 
dominion  only,  or,  rather,  for  persons  as  being  simply  the 
inhabitants   of    its  own  jurisdiction,  without  reference  to  the 


8§  LAW   OF   NATIONS — ^JTJ8   GENTIUM. 

existence  of  other  similar  jurisdictions ;  and  they  have,  conse- 
quently, a  peculiar  local  or  territorial  character ;  as  have  also 
the  relations  created  Ly  tliose  laws. 

The  legislative  (juridical)  authority  by  which  any  princi- 
ples, having  this  uniyersal  character  in  the  history  of  jurispru- 
dence, are  recognized  by  the  tribunal  as  being  accordant  with 
natural  reason,  and  allowed  to  determine  the  relations  of  alien 
pereons,  is,  indeed,  that  of  the  state  within  whose  limits  such 
aliens  may  be  found,  and  that  recognition  is  ultimately  dependent 
on  the  political  possessor  of  the  supreme  civil  power.  But  this 
is  not  inconsistent  with  the  assertion,  that  in  the  progress  of 
jurisprudence  among  different  nations,  a  portion  of  the  law  of 
each  may  be  said  to  result  from  the  general  promulgation  of 
all  nations,  the  effects  of  which  its  judicial  tribunals  will  recog- 
nize without  reference  to  their  own  national  sovereign  as  the 
source  or  origin  of  law,  though  such  effects  are  still  known  to 
depend  in  each  jurisdiction  upon  the  will  of  the  supreme  power, 
and  are  recognized  and  accepted  with  the  intention  of  carrying 
out  that  will.'  Or,  making  use  of  the  language  of  the  Institutes, 
it  may  be  said,  that  the  interpretation  of  law  as  a  rule  of  right, 
and  one  founded  in  natural  reason, — quod  naturalis  ratio  inter 
omnes  homines  constituit — has  been,  as  matter  of  histoiy,  so 
uniform  in  respect  to  some  relations  of  persons,  and  has  been 
so  frequently  and  so  harmoniously  applied  as  private  inter- 
national law,  that  it  may  be  known  as  that  law  which  inter 
omnes  populos  pera3que  custoditur  : — a  jus  gt7itiitm, — a  law 
among  nations,  or  universal  law ;  the  effects  of  which  may  be 

'  Savigny :  Heut.  Rom.  R.,  B.  i.,  c.  3,  §  22.  Tr. :  "  In  the  commencement  oT 
their  intercourse  with  the  neighboring  foreign  states  it  became  ■  necessary  for  the 
Roman  tribunals  to  recognize,  together  with  their  own  national  law,  a  law  applicable 
to  foreigners ;  and  not  merely  the  law  of  some  one  foreign  state,  but  that  which  was 
common  to  a  number  of  such  states.  By  the  extension  of  the  Roman  dominion,  and 
the  greater  diversity  of  their  intercourse  with  foreigners,  their  field  of  view  in  this  re- 
spect became  proportionately  enlarged,  and  in  this  manner  they  gradually  conceived 
the  more  abstract  idea  of  a  law  common  to  the  Romans  together  with  all  nations,  or 
all  mankind.  It  is  evident  that  the  Romans,  in  founding  this  conception  on  observa- 
tion, could  not  but  have  seen  that  their  induction  was  imperfect,  because  they  did  not 
know  every  nation,  and  it  is  certain  that  they  never  were  careful  to  ascertain  whether 
their  Jus  gentium  actually  obtained  in  the  laws  of  all  those  that  they  did  know.  Still 
it  was  natural,  after  recognizing  this  comparative  universality,  to  go  back  to  its  source, 
and  this  they  found  to  be,  uuiver.^ally,  in  naturalis  ratio ;  i.  e.,  the  consciousness,  im- 
planted in  the  common  nature  of  man,  of  a  moral  rule." 

See  also,  Hist,  of  Rom.  L.  in  the  Middle  Age,  by  the  same  author ;  Cathcart's  Tr., 


APPLICATION    OF   TIIE   JUS   GENTIUM.  87 

particularly  enumerated,  as  is  done  in  the  Institutes,  Lib.  I., 
tit.  ii.,  §  2.  Ex  hoe  jure  gentium  omnes  psene  contractus  intro- 
ducti  sunt,  ut  emtio,  vonditio,  locatio,  conductio,  societas,  de- 
posituni,  niutuum  et  alii  innumerabiles.  And  in  the  jurispru- 
dence of  every  nation  the  law  may  be  distinguished  as  being 
either  rules  peculiar  to  itself,  jus  civile  or  proprimn,  or  else  rules 
common  to  it  with  the  rest  of  mankind,  jus  gentium  ;  each  of 
which  divisions  of  the  law  (national  law, — jus  civile  in  that 
sense)  may  be  applied  as  international  or  as  municipal  (inter- 
im nal)  law:  that  is,  may  be  applied  either  to  alien  or  to  domiciled 
subjects.  Tlie  term  "law  of  nations"  has,  in  modern  jurispru- 
dence, been  generally  taken  to  mean  public  international  law 
only  :  but  the  original  use  of  the  term,  inEoman  jurisprudence, 
as  will  be  hereinafter  more  fully  shown,  (ch.  iv.,)  was  that  of  a 
private  law  universally  recognized.* 

§  95.  And  though  these  principles  of  a  so  called  universal 
jurisprudence  have  that  character  from  the  historical  fact  that  the 
relations  created  by  them  have  been  found  in  force  among  all 
nations,  and  therefore  must  be  supposed  to  be  already  known 
effects  of  the  local  (internal)  law  of  each  single  nation,"  yet  they 
may  retain  their  jural  character  and  be  judicially  recognized  and 
applied,  on  the  ground  of  their  historical  universality,  even 
when  none  of  the  domiciled  inhabitants  of  the  forum  sustain 
such  relations  under  the  municipal  (internal)  law. 

Having  once  acquired  the  character  of  jural  rules,  in  the  ju- 
risprudence of  each  state,  by  an  a  posteriori  or  inductive  method, 
— i.  e.  from  the  fact  of  their  general  recognition, — they  will 
thereafter  obtain  and  operate  as  a  priori  principles, — or  princi- 
ples from  which  consequences  are  to  be  drawn  deductively,  and 
will  be  judicially  recognized,  by  tlie  tribunals  of  any  one  nation, 
because  having  this  character.^ 

§  96.  Therefore  when  persons  who  sustain  legal  relations 
under  tlie  legislative  or  juridical  authority  of  some  state  of  dom- 

ch.  i.,  §  1 ;  and  in  Foelix :  Dr.  Int.  Pr.,  §  122,  a  recognition  of  this  feature  of  the 
Roman  hiw  ;  contrasting  it  with  a  remarkable  difference  in  this  respect,  in  tlie  modern 
French  international  jurisprudence. 

'  Compare  ante,  g  34,  and  notes. 

'  Quod  ci\nle  non  idem  continuo  gentium  ;  quod  autem  gentium  idem  civile  esse  de- 
Det.     Cicero  de  Off  III.  17.     Gaius,  ap.  Dig.  Lib.  I.  Tit.  i.  g  9. 

^  Peckius,  de  Regulis  Juris,  1. 


88  JUS   GENTHJM   IN   TIFE   LOCAL   LAW. 

icil,  appear  as  aliens  within  any  other  national  jurisdiction, 
those  relations,  and  the  rights  and  obligations  in  which  they  con- 
sist, will  be  recognized,  allowed,  sustained  or  maintained,  by  the 
judicial  tribunals  within  that  jurisdiction,  when  such  anterior 
relations  were  founded  on  ])rinciples  which  have  this  univei*8al 
character  in  the  history  of  jurisprudence  ;  without  instituting  de 
novo  a  comparison  of  those  relations  with  the  effects  of  the  local 
(internal)  law :  and  they  will  be  internationally  supported  as 
consistent  with  \\\q power,  law  and  riyht — potestate  et  jure — of 
the  state  having  jurisdiction  ;  until  positively  disallowed  by  the 
will  of  the  supreme  national  power,  to  be  ascertained  by  some 
known  judicial  method.*  In  fact  when  the  anterior  relations  of 
aliens  are  thus  continued  by  the  recognition  of  tl>e  historical 
universality  of  the  legal  ru]e  from  which  tliey  arise,  that  recog- 
nition is  an  application  of  intei^national  private  law  only  from 
the  character  or  position  of  the  persons  to  wliom  those  relations 
are  ascribed.  But  there  is  in  this  case  no  conflict  between  the 
laws  of  the  {v:o  fonuns  or  jurisdictions,  nor  any  occasion  to  sup- 
pose the  operation  of  international  comity, — the  comity  of  the 
nation.  For  in  this  case,  by  the  recognition  of  the  universal 
prevalence  of  these  principles,  the  relations  so  sustained  may  be 
said  to  derive  their  support  directly  from  the  municipal  (na- 
tional) law  of  \hefonim — the  same  law,  in  its  legislative  source 
and  authority,  as  that  which  determines  the  relations  of  dom- 
iciled inliabitants  ;  for  being  principles  of  a,  universal  jurispru- 
dence they  must  be  supposed  to  form  a  part  of  that  law."     But 

'  Thus  ill  Scnmshire  vs.  Scrimshire,  2  Hagfr-  Cons.  Rep.  p.  421,  it  is  said,  "As  there 
is  no  positive  law  of  this  country  which  prohibits  the  court  from  taking  notice  of  tha 
ius  g'  ntium." 

Greenl.  Evid.  I.  §  5.  "  In  like  manner  the  law  of  nations  and  the  general  customs 
and  usan;es  of  merchants,  as  well  as  the  general  law  and  customs  of  our  own  country, 
are  recognized  without  proof  by  the  courts  of  all  civilized  nations."  (Citing  2  Ld. 
Ra>Tnond.  1542,  Heiueccius  ad  Pand.  1.  22,  tit.  3,  sec.  1  U>.  1  Bl.  Coram.  75,'76,  85.) 
— Here  the  same  universal  jurisprudence  seems  intended,  though  the  term  "law  of 
nations"  is  probably  conci-ived  of  as  being  public  rather  than  private  law. 

"  Scrimshire  vs.  Scrimshire,  2  Hagg.  Consistory  R.  p.  417.  "The  jus  grnfium  is 
the  law  of  every  country;  every  country, takes  notice  of  it,  and  this  court,  observing 
that  law  in  dttermining  upfni  tliis  case,  cannot  be  said  to  determine  English  rights  by 
the  law  of  Erance,  but  by  the  law  of  England,  of  which  the  jus  gentiu'ii  is  a  part." — 
Here  the  term  jus  yentium — law  of  nations,  is  used  in  its  original  signification — that  of 
private  law, — a  law  determining  the  relations  of  private  persons  which  is  known  by  its 
universal  reception.  There  are  many  other  cases  in  which  the  law  of  nations  is  said  to 
be  part  of  the  law  of  England,  when,  by  tliat  term,  public  international  law — the 
rule    acting    on    nations    as   political   persons   is  intended :    Bl.    Comm.    I.    p.    273, 


ITS   AtJTHORTTT — HOW   LIMITED.  80 

Bince  it  is  only  by  the  recognition  of  some  persons  as  aliens,  or  as 
having  before  sustained  relations  which  did  not,  in  the  first 
instance,  exist  under  the  legislative  authority  of  the  country  to 
which  they  are  alien,  that  such  discrimination  can  be  made,  it  is 
only,  or  primarily  at  least  only,  in  international  law  that  this 
universal  law  or  jurisprudence  can  be  recognized.' 

"When  any  principles  of  universal  jurisprudence  have  been 
thus  recognized  and  applied,  in  the  international  law  of  any 
particular  jurisdiction,  to  determine  the  condition  of  alien  per- 
sons, they  will  also  form  a  part  of  the  municijjal  (internal) 
law  of  the  same  jurisdiction,  if  the  alien  persons,  or  those  for- 
merly subject  to  the  national  law  of  another  domicil,  acquire  a 
new  domicil  in  that  jurisdiction.  Being  received  as  an  authori- 
tative exposition  of  natural  reason,  with  the  extent  of  a  personal 
law,  (§  27,)  they  must  be  held  to  be  equally  authoritative  to  de- 
termine the  condition  of  the  same  persons  in  the /or  U77i  to  which 
they  are  transferred  whether  they  retain  or  lose  their  former 
domicil. 

§  97.  But  however  general  that  recognition  of  any  rule  of 
action  may  have  been  among  the  various  states  or  nations  of  the 
world,  it  is  not  a  universal  law  in  the  sense  of  being  a  judicial 
rule  within  the  jurisdiction  of  every  state  independently  of  its 
own  will  or  consent.  The  word  imiversal  is  a  term  here  applied 
to  a  rule  or  principle  in  respect  of  its  historical  prevalence,  and 
not  in  respect  to  an  intrinsic  universal  authority;  its  actual 
force,  before  the  tribunals  of  any  state,  lying  only  in  the  judi- 

rV.  p.  67.  Triquet  v.  Bath,  3,  Burr.  1480.  Respub.  v.  Longchamps,  1,  Dall.  111.  The 
admiralty  Report?,  passim  ;  but  this  latter  use  is  not  proper ;  except  in  the  considera- 
tion that  public  international  law  always  involves,  to  a  certain  extent,  the  relations 
of  private  persons. 

'  Thus  the  law  of  maritime  commerce  prevailing  in  some  one  country  consists  in  a 
great  degree  in  the  law  qfna/ionx,  or  universal  jurisprudence  ;  because  it  must,  in  a 
great  measure,  be  formed  by  the  judicial  application  of  private  international  law  ;  or, 
in  other  words,  because  in  point  of  fact,  those  relations  of  private  persons  which  are 
known  in  mnritime  commerce,  generally  involve  actions  which  must  take  place  in 
some  other  jurisdiction  than  that  in  which  the  correlative  rights  and  obligations  arising 
out  of  those  relations  have  been  enforced  or  are  to  be  enforced. 

Kaimes,  Princip.  of  Eq.  B.  III.  c.  8.  "Thus  in  the  Kingdom  of  Scotland,  all  foreign 
matters  were  formerly  heard  and  decided  on  by  the  King  in  council ;  in  later  times  a 
special  jurisdiction  has  been  vested  for  that  purpose  in  the  court  of  Sessions,  which  de- 
cides all  sucli  causes  on  general  principles  of  Equity." 

Gains  :  Com.  I.  §  92,  calls  the  jus  gentium  : — "  Leges  moresque  peregrinonim  ;  "  see 
also  Reddie :  Hist.  View  of  the  Law  of  marit.  Com.  p.  82,  118.  Waechter,  Arch.  f.  d. 
Jivil.  Pras.  Bd.  24,  p.  245-6.     Smith's  Diet.  Antiq.  voc. — Praetor. 


90  DISTINCTION   IN   ATTKIBCTmO   UNIVEESALnT. 

cial  presumption  tliat  such  principle  is  accordant  with  natural 
reason,  and  that  the  state,  therefore,  intends  to  enforce  it  as  law.' 

If  the  state,  or  those  who  hold  the  supreme  power  thereof, 
have  promulgated  any  principles  with  a  universal  personal  ex- 
tent, i.  e.  an  application  to  all  natural  persons  within  its  juris- 
diction, which  are  contrary  to  the  principles  of  the  law  histori- 
cally known  as  imiversal,  or  which  produce  opi)osite  effects, 
the  trihunal  is  hound  to  apply  those  principles  of  its  own  local 
law,  as  a  test  of  the  accordance  of  foreign  laws  with  natural 
reason,  without  regard  to  the  principles  of  universal  jurispru- 
dence— the  law  of  nations — thus  historically  known." 

§  98.  It  must  be  carefully  noted  that,  in  this  inquiry  into 
the  principles  regulating  the  admission  or  the  exclusion  of  tlie 
effect  of  foreign  laws,  the  term  universal  is  applied  to  legal 
principles  in  reference  to  two  entirely  distinct  incidents  of  their 
existence.  In  the  one  case  the  qualitative  term  universal  is 
used  with  reference  to  the  anterior  reception  of  a  legal  princi- 
ple among  all  nations,  or  at  least  all  nations  that  are  considered, 
by  tlie  state  under  which  the  tribunal  acts,  as  sufficiently  en- 
lightened to  be  authoritative  exponents  of  natural  reason  (§  36). 
In  the  other  case  the  same  term  is  employed  with  reference  to 
the  application  of  a  legal  principle  to  all  individuals  within  the 
power  or  jurisdiction  of  some  one  state,  nation,  or  possessor  of 

'  The  historical  law  of  nations,  the  universal  jurisprudence  thus  manifested  in  in- 
ternational law,  is  therefore  the  natural  law,  so  far  as  it  can  he  recognized  in  jurispru- 
dence, (ante  §  34-36).  The  followintr  passage  from  Long's  Discourses,  p.  62,  is  a 
modification  from  that  before  given  from  Savigny  ;  but  it  is  here  inserted  as  showing 
the  modern  appreliension  of  the  jus  gentium  : 

"  The  observation  of  those  rules  of  law  in  their  own  system  which  were  of  a  gen- 
eral character  and  not  peculiarly  Roman,  and  the  comparison  of  them  with  like  rules 
of  law  which  obtained  in  other  states,  may  have  led  the  Romans  to  a  consideration 
of  those  universal  principles  which  prevail  in  the  laws  of  all  nations.  In  matters  in  dis- 
pute between  aliens  and  Romans,  they  must  also  have  been  led  to  a  practical  acquaint- 
ance with  the  law  of  foreign  states,  and  to  the  reception  of  such  law,  when  it  was  re- 
commf  nded  by  reasons  of  utility,  and  when  it  was  not  opposed  to  the  positive  rules  of 
their  own  Jus  Civile.  As  the  Romans  were  a  practical,  and  not  a  theoretical,  people,  it 
seems  that  it  was  in  this  way,  by  their  intercourse  with  other  people,  that  they  were 
led  to  the  assumption  or  the  acceptance  of  the  notion  of  rules  of  law  more  general 
than  the  strict  Roman  rules.  This  was  the  probable  origin  of  the  notion  of  a  Jus  Gen- 
tium, or  Jus  Naturale  or  natural  law,  which  two  terms  are  perfectly  equivalent  in  the 
Roman  writers.  The  term  Jus  Gentium  has  a  reference  to  the  mode  in  which  tlie  no- 
tion originated,  that  is,  from  the  intercourse  with  other  states;  the  Jus  Xaturale  is  the 
term  more  applicable  to  the  induction,  when  made  more  complete  by  further  acquaint- 
ance with  tlie  institutions  of  other  people,  and  by  the  development  of  mcjre  universal 
notions." 

*  See  ajite,  §  77,  and  §  88. 


LAW   •WITH   UNIVERSAL   PERSONAL   EXTENT.  91 

sovereign  national  power,  from  whom  the  principle  derives  its 
coercive  force.  For  while  it  is  evidentthat  no  state  has  of  itself 
any  power  to  establish  a  new  principle  in  nniversal  jurispru- 
dence— the  historical  law  of  nations^  (i.  e.,  the  law  whose  uni- 
versality is  a  historical  feet,)  which,  from  having  that  character, 
is  receivable  by  the  tribunals  of  any  one  country  as  being  pre- 
sumptively accordant  with  natural  reason  every  where,  yet, 
within  its  own  territory  and  jurisdiction,  it  may  attribute  to  any 
principle  the  character  of  a  law  which  is  to  be  ap})lied  universally^ 
— that  is,  applied  by  its  own  judicial  tribunals  to  all  persons^ 
within  its  own  jurisdiction,  in  certain  circumstances  of  natural 
condition,  or  as  one  founded  on  the  nature  of  individual  men 
forming  the  constituents  of  society  ;  whether  it  be  consonant  or 
not  with  the  code  of  universal  law,  or  the  law  of  nations,  histor-  v 
ically  known. 

§  99.  Although,  therefore,  in  the  course  of  the  international 
recognition  of  the  effects  of  foreign  laws,  and  of  the  general 
progress  of  jurisj)rudence  among  civilized  nations,  some  rela- 
tions, rights  and  obligations  of  alien  persons,  or  more  generally, 
— of  persons  before  subject  to  other  jurisdictions, — are,  from 
their  general  prevalence  among  nations,  as  proved  by  history, 
to  be  judicially  allowed  therein,  as  accordant  with  natural 
reason,  or  as  jural  relations, — yet  that  recognition  will  always 
be  limited  by  whatever  principles  in  the  municipal  (internal) 
law  of  the  forum  of  jurisdiction,  may  have  a  universal  personal 
extent,  or  apply  to  all  persons  under  that  jurisdiction  in  certain  - 
circumstances  of  natural  condition ;  being  promulgated  by  the 
supreme  source  of  the  local  law  as  principles  which  ought  to 
apply  to  all  natural  persons  in  such  circumstances. 

It  being  here  asserted  that  the  judicial  recognition  and  ad- 
mission of  the  effects  of  foreign  laws  on  a  presumptive  accord- 
ance with  natural  reason,  {ante  §  77,)  is  always  limited  by  the 
operation  of  local  laws  having  universal  personal  extent,  it  may 
be  objected,  that  this  reference  to  a  universal  jurisprudence — 
the  historical  law  of  nations,  in  the  application  of  private  inter- 
national law,  is  of  no  actual  force ;  and  that  is  sufficient  to  say, 
that  relations  existent  under  foreign  laws  are  always  to  be  judi- 
cially maintained,  on  the  principle  of  comity,  (so  called,)  unless 


92  APPARENT   ORTECnONS. 

the  local  law  having  univerBal  personal  extent  produces  rights 
and  obligations  inconsistent  with  those  relations.  But  the  va- 
lidity of  this  reference  is  found  in  the  fact  that  the  personal  ex- 
tent of  laws, — the  question  whether  they  are  universal  or 
limited,  is  ordinarily  determined,  (as  is  the  far  greater  part  of 
all  positive  law,)  by  judicial  action  ;  and  that  this  is  to  be  in  the 
mode  in  which  any  rule  of  law  is  judicially  determined  :  that 
is,  from  external  indices  of  natural  reason  already  accepted  by 
the  state  ;  of  which  universal  jurisprudence — the  law  of  nations, 
must  always  be  one.  And  here  is  shown  the  genital  connection 
of  universal  jurisprudence,  or  the  law  of  nations,  with  that 
part  of  the  laws  of  each  country  which  is  universally  applied, — 
has  universal  personal  extent,  so  far  as  the  legislative  or  juridi- 
cal power  of  that  country  extends.  For  the  actual  universal 
jurisprudence — tlie  historical  law  of  nations — grows  out  of,  or 
is  discernible  by  the  discrimination,  (under  private  international 
law,)  of  a  part  of  the  law  of  each  nation  having  universal  per- 
sonal extent,  and  constituting  a  standard,  in  its  own  courts  of 
law,  of  the  accordance  of  foreign  laws  with  natural  reason.' 

§  100.  It  may  also  be  objected  that  it  is  a  contradiction  in 
terms  to  recognize  a  principle  as  forming  part  of  the  laio  of  nor 
tions,  or  as  being  a  principle  of  wmytTsa^  jurisprudence,  and  at 
the  same  time  to  intimate  a  possibility  of  its  being  contravened 
by  the  local  law;  for  if  it  is  not  recognized  in  the  local  law  it  is 
not  universally  received  ;  oris  not  part  of  the  laws  of  all  nations. 
Strictly  speaking,  this  is  true.  Yet  it  is  evident  that  the  sover- 
eign legislative  power  may  contravene  principles  which  before 
were  universally  received,  or  which  in  the  history  of  jurispru- 
dence have  before  had  the  character  of  a  law  of  nations.  But 
still  these  principles  will  be  judicially  known  to  have  had 
that  character,  up  to  the  period  of  such  legislative  act ;  and  the 
tribunal  would  still  recognize  them  as  being,  in  the  absence  of 
legislation,  the  best  exponent  of  the  will  of  the  sovereign  power. 

*  It  will  be  shown,  however,  in  subsequent  chapters,  that  there  are  cases,  incident 
to  the  se.'tlement  of  new  countries,  or  the  establishmt-nt  of  laws  in  countries  which 
have  not  before  had  a  local,  territorial,  or  national  law,  wherein  universal  jurisprudence 
— th^  law  of  nations, hccom^fi  practically  operative  in  a  more  direct  manner ;  that  is, 
where  it  is  not  merely  a  judicial  means  of  ascertaining  what  principles  of  the  loiol  law 
»ave  universal  personal  extent. 


LAW    OF    NATIONS WHEKE    FOUND.  VQ 

And  here  appears  the  connexion  or  identity  of  the  law  of  nations 
— universal  jurisprudence — with  the  only  natural  law,  having 
the  character  of  a  rule  of  action,  which  can  in  the  jurisprudence 
of  any  one  country  be  distinguished  from  the  rest  of  tlie  posi- 
itive  law.'  Ordinarily,  the  law  of  nations  of  the  period  is  always 
incorporated  in  the  customary  municipal  (national)  law  of  the 
forum,'  operating  either  as  internal  or  as  international  law ;  and 
such  is  the  intimate  connection  of  the  two  attributions  of  uni- 
versality under  a  judicial  discrimination  of  the  law  {ante  §  29- 
36,)  that  it  would  be  difficult  to  separate  them.  Tlie  in- 
stances will  be  few,  if  any  there  can  be,  where  an  opposition 
will  occur  of  the  laio  of  nations,  judicially  cognizable  at  any  par- 
ticular period,  and  a  local  law  having  universal  personal  extent 
by  judicial  recognition  only.  Though  it  is  plain  that  the  su- 
preme legislative  power  of  the  state  may  always  disallow  the 
rules  of  this  universal  jurisprudence  by  promulgating  a  contrary 
rule,  having  either  a  limited  or  a  universal  personal  extent 
within  its  own  jurisdiction." 

§  101.  General  or  universal  jurisprudence — the  science  of 
universal  law,  or  the  law  of  nations,  so  far  as  it  exists  distinct 
from  the  common  or  unwritten  law  of  any  one  state  or  nation,  is 
known  by  the  long  continued  international  comparison  of  the 
laws  of  various  states  ;  the  ascertained  harmony  of  their  legisla- 
tion, and  of  the  judicial  decisions  of  their  tribunals  ;  collected, 
digested  and  expounded  by  private  jurists,  and,  in  course  of 
time,  foi-ming  a  distinct  repository  of  legal  principles,  and,  in 
some  sense,  a  code  of  law  having  universal  jurisdiction.' 

'  Hence  thf  jus  gentium  of  the  Roman  jurists  was  often  described  by  them  as  being 
identical  with  the  unalterable  rules  of  natural  justice.  Inst.  Lib.  i.  Tit.  2.  §  11,  Mid 
hence  with  the  Roman  rhetorical  writers  it  is  often  identified  with  nalura,jus  naturale. 
See  Savigny :  Heut.  R.  R ,  B.  i.  c.  3,  §  22,  and  compare  ante  §  19,  34 ;  and  Austin. 
Prov.  of  Jurisp.  p.   190. 

»  Sarigny :  Heut.  R.  R.,  B.  i.  c.  3,  §  22. 

'  Wheaton,  International  law,  §  10,  thus  cites  from  Heffier's  Europiiischer  Volker- 
recht,  §  2. 

"  According  to  HeflTter,  one  of  the  most  recent  and  distinguished  public  jurists  of  Ger- 
JD^nj) — 'the  law  of  nations,  jux  gentium,  in  its  most  ancient  and  extensive  acceptation,  as 
established  by  the  Roman  jurisprudence,  is  a  law  (Recht)  founded  upon  the  general  usage 
and  tacit  consent  of  nations.  This  law  is  applied,  not  merely  to  regulate  the  mutual 
relations  of  states,  but  also  of  individuals,  so  far  as  concerns  their  respective  rights  and 
duties,  having  every  where  the  same  character  and  the  same  effect,  and  tlie  origin  and 
peculiar  form  of  which  are  not  derived  from  the  positive  institution  of  any  particular 
state  '     According  to  this  writer  the  Ju3  gentium  consists  of  two  distinct  branches. 


94  TTNIVERSALnr — HOW    ASCERTAINED. 

The  distinction  of  the  laws  of  any  one  state  into  rules  which 
its  tribunals  are  to  extend  to  its  domiciled  subjects  only,  (or 
rather  to  persons  who  have  never  actually  sustained  relations 
under  other  laws,)  and  rules  which,  as  having  that  universal 
personal  extent  which  has  been  above  described,  they  are  to 
apply  to  all  natural  persons,  whether  they  have  or  have  not  sus- 
tained relations  under  other  laws,  is  necessarily  connected  with 
the  recognition  of  such  a  general  or  universal  jurisprudence — 
the  science  of  a  lavj  of  nations  historically  knoAvn  by  the  ap- 
plication of  international  law.  For  the  juridical  and  legisla- 
tive action  of  nations  or  political  states,  is,  as  before  shown, 
one  of  the  most  authoritative  indices  of  natural  reason,  and  there- 
fore a  test  to  determine  wjiat  principles,  in  the  local  or  internal 
law,  may  be  judicially  taken  to  be  the  eiFocts  of  rules  which  are 
not  only  jural  in  and  for  that  jurisdiction,  but  rules  so  far  founded 
on  the  nature  of  man,  in  civil  society,  that  they  may  be  always 
judicially  presumed  consonant  with  the  natural  conditions  of 
human  existence,  and  therefore  of  universal  personal  extent 
or  application  ; '  and  at  the  same  time  the  separate  judgment  of 

"  1,  Human  rights  in  general,  and  those  private  relations  which  sovereign  states  re- 
cognize in  respect  to  individuals,  not  subject  to  their  authority. 

"  2.  The  direct  relations  exfsting  between  those  states  themselves. 

"  '  In  the  modern  world,  this  later  branch  has  exclusively  received  the  denomination 
of  law  of  nations,  Yolkerrecht,  Droit  dcs  Gens,  Jus  Gentium.  It  may  more  properly 
be  called  external  public  law,  to  di.stin^^iish  it  from  the  internal  public  law  of  a  particu- 
lar state.  The  first  part  of  the  ancient  jus  (lenlinm  has  become  confounded  with  the 
municipal  laws  of  each  particular  nation,  without,  at  the  same  time,  losing  its  original 
and  essential  character.  This  part  of  the  science  concerns,  exclusively,  certain  rights 
of  men  in  general,  and  those  private  relations  wh'ch  are  considered  as  being  under  the 
protection  of  nations.  It  has  usually  beeu  treated  of  under  the  denomination  of  pri- 
vate international  law.' 

"  Hefi'ter  does  not  admit  the  term  interaational  law,(droit  international,)  lately  intro- 
duced and  generally  adopted  by  the  most  recent  writers ;  according  to  him,  this  term 
does  not  sufficiently  express  the  idea  o{  jux  r/cntinm  of  the  Roman  jurisconsults.  He 
considers  the  law  of  nations  as  a  law  common  to  all  mankind,  imd  which  no  people  can 
refuse  to  acknowledge,  and  the  protection  of  which  may  be  claimed  by  all  states.  He 
places  the  foundation  of  tlie  law  on  the  incontestable  principle  that  wherever  there  is  a 
society,  there  must  be  a  law  obligator}- on  its  members;  and  he  thence  deduces  the 
consequence  that  there  roust  likewise  be  for  the  great  society  of  nations  an  analof^ous 
law."      But  compare  anie  §  37  and  the  note. 

*  Savignv,  Vocation  lor  our  Age  for  Legislation  and  Jurisprudence,  Hayward's  transL 
p.  110. 

"  On  this  point  the  well  known  prize  question  of  1788  merits  consideration  ;  which 
•equired  a  manual  in  two  parts,  of  which  the  first  was  to  contain  a  law  of  nature  ab- 
stracted from  the  code,  [(ode  of  PriisKin,']  the  second,  an  abstract  of  the  positive  law 
itself.  This  notion  of  the  law  of  nature  was  very  superciliously  received,  and  thereby 
injustice  was  done  to  it ;  certainly,  under  this  name,  that  ought  to  have  been  set  forth 
which  the  legislator  himself  regards  as  universal,  and  not  of  mere  positive  enactment,  in 


GUIDK   OF   JUDICIAL   OFFICER.  SJO 

eacli  nation  upon  this  point  cannot,  as  has  been  shown,  be  man- 
ifested, except  in  the  application  of  international  law.  In  the 
present  advanced  state  of  jurisprudence,  among  civilized  nations, 
when  the  various  effects  of  international  intercourse  upon  the 
relations  of  private  persons  have  been  so  frequently  made  the 
subject  of  judicial  and  legislative  consideration,  the  customary- 
laws  of  commerce  and  war  furnish  rules  which  will  be  judicially 
known  as  authoritative,  in  ordinary  cases,  until  new  legislation 
intervenes.  And  it  is  rarely  the  case  that  a  tribunal  can  make 
an  original  discrimination  of  its  own  municipal  (internal)  law,  • 
as  being  either  universal  or  particular  in  its  extent  or  application 
to  private  persons,  when  deciding  on  the  international  allowance 
of  the  effects  of  foreign  laws. 

§  102.  But  if  it  is  necessary  in  any  case  to  decide, — whether 
any  rule  or  principle  of  its  own  municipal  (internal)  law  is  to 
be  taken,  independently  of  any  exterior  authority,  or  criterion, 
to  be  an  assertion  of  a  universal  principle — one  applying  to  all 
mankind,  or,  rather — one  to  be  applied  to  all  persons  within  the 
jurisdiction  of  the  state  in  certain  circumstances  of  natural 
condition,  irrespectively  of  their  national  character  or  previous 
subjection  to  other  laws, — the  tribunal  can  have  no  other  guide 
than  the  rules  of  ordinary  reasoning  applied  to  the  mode  in 
which  the  municipal  (internal)  law  is  asserted  or  promulgated 
in  reference  to  persons  and  things  within  its  own  territorial 

his  laws  ; —  an  interesting  historical  problem  ;  exactly  reseiubling  that  of  the  Roman 
^'k.'!  genii loii." 

As  will  be  shown  hereafter,  the  Romans  took  the  jus  rjentium,  i.  e.  law  known  by 
its  acceptance  among  all  rations,  to  be  the  best  exposition  of  the  law  of  nature,  re- 
garded as  a  rule  of  action,  or  a  law  in  the  primary  sense  of  the  word.  After  the  estab- 
lishment of  Christianity  in  Europe,  the  Christian  Church  assumed  the  possession  of  a 
criterion  of  the  law  of  nations,  in  a  Revelation  of  wbich  it  was  the  instrument  and  ex- 
ponent. (Amoldi  Corvini  Jus  Canonicum,  p.  2.)  Ir  then  denied  the  authority  of  the 
natural  reason  of  mankind,  however  concurrent ;  and  in  a  large  part  of  Europe — per- 
haps the  whole  of  Europe,  anterior  to  the  refonnation,  the  canon  law  took  the  place 
of  thajits  (jenthivi  of  the  Romans  ;  that  is,  became  the  written  code  of  universal  juris- 
prudence. In  the  canon  law  digests,  nalural  law  is  first  asserted  as  that  part  of  the 
national  law  of  each  country,  quod  inter  ornnes  populos  perseque  custoditur  :  it  being 
understood  that  the  exposition  of  this  universal  natural  law  is  the  organized  Christian 
Church.  (T.  Bozius.  De  Jure  Status.  Romae,  1600.)  From  this  time  it  would  appear 
that  jus  gentium  and  law  of  nations,  in  the  modern  writers,  were  put  for  a  law  of 
which  nations  are  the  subjects,  which  law,  as  will  hereinafter  be  shown,  was,  during  the 
Roman  Empire,  identified  with  their  y'^a  jtuhJiciim  and  j«.s  fecialc.  Compare  Decretals 
Prima  Pars.  Distinct.  I.  c.  ix.  Phillimore  on  International  Law,  p.  24,  note.  Heineccius, 
1737.     Jut.  Nut.  et  Gent.  L.  I.  c.  i.  §  21.     Butler's  Hone  Juridicae  Essay,  Canon  Law. 


96  RULES   GUIDING   TRIBUNALS. 

limits.  It  is  probably  impossible  to  state  any  legal  rules  con- 
trolling that  judgment  of  the  tribunal,  (arbitrium  boni  viri,)  un- 
less equivalent  to  tlie  following: — 

1.  If  tlie  will  of  the  state,  in  reference  to  the  action  of  pri- 
vate persons  in  certain  supposed  circumstances,  is  expressed  by 
direct  legislative  acts — a  form  of  words, — it  may  be  expressed 
in  words  requiring  a  universal  application,  or  an  extent  to  all 
natural  persons  within  the  jurisdiction  of  the  state. 

2.  Wherever  the  local  internal  law,  derived  either  by  posi- 
tive legislation  or  by  custom — judicial  interpretation  of  natural 
reason,  attributes  rights  or  duties,  to  the  native  or  domiciled  in- 
habitants of  its  jurisdiction,  as  the  incidents  of  a  relation  exist- 
ing independently  of  the  imles  of  action  which  it  enforces  as 
positive  law ;  or,  to  vary  the  form  of  expression,  where  its  rules 
of  action  are  predicated  upon  the  recognition  of  such  a  relation 
as  being  part  of  an  existing  state  of  things,  in  which  such  per- 
sons as  the  constituents  of  society  are  found,  and  as  being  the 
effect  of  law  in  the  secondary  sense  of  the  word,  (and  therefore 
of  natural  law,  in  the  only  sense  in  which  it  is,  in  jurispru- 
dence, distinguishable  from  positive  law,  ante,  §§  19,  57,)  the 
source  of  that  local  law  must  be  judicially  presumed  to  attribute 
the  same  rights  and  duties  to  all  jsersons  within  the  jurisdiction 
or  forum,  who  are  in  the  same  circumstances  of  natural  con- 
dition. 

§  103.  But  since  the  supreme  national  power  of  the  state 
may  alwaj's,  by  special  legislation,  determine  the  legal  relations 
of  any  particular  persons  within  its  domain,  and  legislation, 
where  it  exists,  is  superior  to  any  indication  of  the  will  of  the 
state  judicially  derived  from  any  other  source,  the  private  inter- 
national law  of  any  one  country  may,  in  part,  consist  of  rules 
applying  to  aliens  (or  persons  anteriorly  subject  toother  jurisdic- 
tions) only,  thus  derived  from  positive  legislation,  modifying, 
wherever  they  extend,  the  judicial  application  either  of  prin- 
ciples derived  from  univei*sal  jurisprudence — the  historical  law 
of  nations — or  of  principles  of  the  local  law  having  before  had 
a  universal  personal  extent  within  that  jurisdiction.  So  that 
private  international  law,  as  well  as  every  other  branch  of  posi- 


AUTHORITY   OF   PRIVATE   INTERNATIONAL   LAW.  97 

tive  la\\;,  may  be  ascribed  either  to  a  natural  origin,  or  to  a 
positive  one  strictly  so  called  ; — positive  legislation,' 

§  104.  Tlie  international  law,  in  determining  nnder  judicial 
application  the  rights  and  duties  of  persons  not  sovereign,  or 
not  holding  sovereign  power,  is  thus  a  part  of  the  private  law 
prevailing  within  a  national  jurisdiction — a  rule  for  persons 
and  tribunals  under  that  jurisdiction,  coexistent  with  the  pri- 
vate municipal  or  internal  law  therein,  and  distinct  from  it  in 
its  object  and  purpose,  but  not  in  its  authority  or  political 
source.  It  being  observed  that  by  such  a  distinction  in  the  ob- 
ject of  the  law,  and  by  the  recognition  of  persons  as  alien  to  the 
supposed  municipal  (internal)  law,  the  first  part  of  international 
law,  (according  to  the  division  before  given,  §  48,)  is  necessarily 
implied  ;  which  part  has  the  character  of  law  in  the  secondary 
sense  only,  being  axiomatic  principles  connected  with  the  exist- 
ence of  states  and  nations,  among  which  the  three  fundamental 
maxims  before  given,  (§§  63,  67,  68,)  are  in  fact  comprised. 
Thus  the  international  private  law,  as  well  as  every  other  branch 
of  private  law,  has  also  the  nature  of  public  law,  since  it  deter- 
mines, to  a  certain  extent,  the  mutual  relations  of  states,  or  the 
holders  of  sovereign  power.  Though,  so  far  as  it  may  do  this, 
the  rights  and  duties  of  states,  incident  to  those  relations,  are 
not  the  effect  of  law  in  the  same  sense  as  are  the  rights  and 
duties  of  private  persons,  growing  out  of  those  relations ;  the 
international  law  being,  for  private  persons,  a  law  in  the  strict 
sense  of  the  word,  by  the  authority  of  the  author  and  source  of 
that  municipal  (national)  law,  to  whose  jurisdiction  they  may 
be  subject;  but,  for  states  or  sovereigns,  only  a  law  acknowl- 
edged by  themselves  to  have  moral  obligation, — a  rule  of  "  posi- 
tive morality."'  It  being  only  by  way  of  analogy  that  any 
rules  of  action  can  be  called  a  law  for  sovereign  nationalities. 

§  105.  The  settlement,  on  general  principles,  of  the  inter- 
national prevalence  of  laws  having  different  national  origins, 
forms  that  topic  of  jurisprudence  which  has  been  denominated 
by  Huber,  Story,  and  others,  "the  conflict  of  laws.'"    Strictly 

'  Compare  ante,  §§  29 — 36,  '  See  ante,  §  11,  and  note. 

'  The  phrase  coUisio  legnm  (Hertius)  is  also  employed  :   with   the  Germans — Col- 
lision der  Gesetze,     This,  like  the  term  cotnity,  has  been  called  hy  some  of  them  a 


98  CONFLICT   OF   LAWS PERSONAL   LAWS. 

speaking,  there  are  no  conflicting  laws  known  to  any  national 
jurisdiction.  Every  rule  which  has  the  force  of  law  within  any 
one  such  jurisdiction  derives  its  force  from  one  sovereign  will, 
and  conflicts  with  no  other  rule  having  the  same  force ;  what- 
ever may  have  been  the  process  by  which  it  is  judicially  ascer- 
tained or  derived,  either  by  following  judicial  criteria  of  natural 
reason,  or  the  expressed  will  of  the  political  source  of  law  for 
that  jurisdiction.  This  is  a  consequence  of  the  first  two  of  the 
three  fundamental  maxims  before  given,  or  only  another  mode 
of  stating  them. 

§  106.  K  the  supreme  power  of  the  state  maintains  within 
its  own  domain  any  rights  or  obligations  of  persons  which  have 
not  attached  to  those  persons  under  its  own  territorial  or  local 
law,  the  law  under  which  tliose  rights  and  obligations  were 
created  has  a  particular  personal  extent,  or  operates  as  a  per- 
sonal law.  The  private  international  law  is  a  personal  law  so  far 
as  it  applies  only  to  a  certain  class  of  persons,  viz.  aliens,  or 
persons  who  sustain  relations  which  have  been  created  by  the 
law  of  a  foreign  jurisdiction,  (§  53.)  Those  relations  having 
been  once  thus  recognized  in  international  law,  the  rights  and 
obligations  arising  from  them  will  be  continued,  in  the  same 
territorial  jurisdiction,  when  such  aliens  become  domiciled  in- 
habitants ;  unless  there  is  some  provision  of  the  local  (internal) 
law  which  specifically  forbids  their  attribution  to  domiciled  sub- 
jects. And  the  law  which  had  at  first  a  personal  extent,  by  being 
internationally  recognized  in  the  case  of  aliens  only,  may  thus 
tliercafter  become  a  part  of  the  municipal  (internal)  law  having 
a  new  territorial  extent. 

§  107.  It  should  be  noted  that  the  principle  upon  which  this 
international  recognition  and  continuance  is  made  is  not  that  the 
law  recognized  had  a  personal  character,  originally,  in  the  terri- 
tory in  which  it  first  existed,  and  established  those  rights  and 
obligations  which  are  here  supposed  to  become  the  subject  of 

romantic — "  abentheurlich  " — expression:  (Maurenbrecher :  Dent  IV.  R.,  2.  Ausg., 
§  76,  not,  3.)  Wsschter,  admitting  that  the  term  is  liable  to  misconstruction,  retains 
it  because  its  significance  is  now  well  understood.  Archiv.  f.  Civ.  Prax.  Bd.,  24-,  p. 
237,  n. 

As  to  the  case  of  different  laws  originating  under  the  same  national  authority  and 
not  conflicting  in  this  sense  ;  see  Bowyer .  Unir.  Pub.  Law,  p.  146 — 7.  Lindley's 
Thibaut,  §  37.     Sa\ngny:  Heut  R.  R.,  B.  III.,  c.  i.,  §§  346,  347,  348. 


PERSONAL   STATUTES.  »» 

international  recognition.  All  laws  determine  relations  of  per- 
sons, {ante,  §§  21,  22,)  but,  according  to  the  view  liere  given, 
the  personal  character  of  a  law  thus  internationally  supported 
is  a  consequence  of  its  international  recognition,  rather  than 
the  cause  of  it.  It  is  said  by  writers  on  the  conflict  of  laws 
quoted  by  Story,  in  Confl.  of  Laws,  p.  12,  that  "  personal  statutes 
are  held  to  be  of  general  obligation  and  force  every  where;" 
and  these  are  contrasted  with  real  statutes  which  are  said  to 
have  no  «c^ra-territorial  force  or  obligation.  By  statutes  in  that 
use  of  the  term  are  not  intended  legislative  enactments,  but  any 
rules  of  law  affecting  relations  of  persons  to  other  persons  and 
to  things  : '  and  hj personal  statutes  are  generally  intended  those 
rules  which  have  determined  the  individual  rights  of  private 
persons  and  their  capacity  for  relative  rights;'  though  the  diffi- 
culty which  has  been  experienced  in  stating  general  rules  to 
distinguish  what  statutes  are  real,  what  personal,  and  what 
mixed,  is  a  proof  of  the  insufficiency  of  the  distinction  to  deter- 
mine their  international  admission.'  It  would,  perhaps,  be 
equally  correct  to  say,  tliat  statutes  which  are  held  to  be  of 
general  obligation  and  force  every  where  are  personal  statutes. 
Their  personal  character  would  then  be  the  result  of  the  extent 
judicially  given  to  them:  and  the  question  is — when  will  a  judi- 
cial tribunal  be  bound  to  admit  them  to  have  this  personal  ex- 
tent? If  the  authority  for  the  tribunal,  in  doing  this,  is  found 
in  the  historical  fact  of  their  international  recognition,  then  their 
persbnal  extent  is,  in  fact,  derived  from  the  customary  law  of 
the  forum.* 

'  Foelix  :  Dr.  Internat.  Pr.,  §  5.  '^Statutum,  coutiime  particulifere."  §  19,  "  Mais 
en  meme  temps  le  terme  statiit,  surtout  dans  la  matiere  du  conflict  des  lois  est  employe 
dans  un  sens  plus  etendu,  et  il  est  pris  comme  synonyme  du  mot  /oi."  Merlin  :  Reper- 
toire, rt7.  ^«<oma<ion  Marilale.  Bowyer:  Univ.  Pub.  Law,  p  163.  2  Kent  Comm., 
p.  ioG-T. 

The  term  appears  originally  to  have  been  used  to  designate  a  law  whose  territorial 
extent  was  limited  to  some  several  province  or  district  of  a  national  state  or  kingdom, 
and  in  that  contrasted  with  the  common  law  of  the  land.  Savigny  :  Heut.  R.  R  ,  B. 
III.,  c.  i.,  §  347.  Thus  in  England  the  particular  customary  laws  of  borough  English, 
and  gavelkind  (v.  1  Bla.  Comm.,  74,  75)  correspond  to  sf/ifu(s  of  the  French  Provinces. 

"  Story's  Confl.  of  Laws,  §  51,  and  generally  ch.  iv.  of  that  work. 

^  Keddie's  Inq.  in  Internat.  L.,  pp.  42.5 — 7.  Hertius:  De  CoUisione  Legum,  §  4, 
speaking  of  real,  personal,  and  mixed  statutes  : — "  venun  in  lis  definiendis  minim  est 
quam  sudant  doetores." 

*  Scha>ffiier,  ij  31.  Reddie's  Inq.  in  Internat.  L.  pp.  477-8.  Various  European 
writers  for  and  against  this  f'ew  are  cited  by  Wsechter  in  Archiv.  &c.,  Bd.  24,  pp. 
255— 26L 


100  PREVALENCE   OF   PERSONAL    LAW8. 

It  would  indeed  seem,  from  tlie  writings  of  the  civilians, 
that  tliere  was  a  period  in  tlie  jurisprudence  of  Continental 
Europe  when  this  personal  character  of  a  law  was  regarded  as 
the  juridical  basis  of  the  international  recognition.  Audit  is 
plain  that  after  laws  of  a  certain  class  or  character, — laws  aftect- 
ing  a  specific  class  of  relations, — have,  in  a  number  of  instances, 
been  allowed  international  recognition  on  other  grounds,  the 
fact  of  their  having  been  admitted  to  have  a  personal  extent 
within  foreign  jurisdictions  becomes  an  evidence,  to  the  tribu- 
nals of  any  one  forum^  of  their  jural  cliaracter ;  and,  by  that 
international  recognition,  they  may  have  acquired  that  historical 
universality,  which  gives  them,  before  the  individual  judicial 
tribtmal,  a  legal  existence  distinct  from  the  municipal  (internal) 
law — the  law  having  territorial  extent  in  and  for  the  forum  of 
jurisdiction.  As  a  class  of  laws  which  have  received  inter- 
national recognition,  in  determining  the  relations  of  persons 
passing  from  one  territorial  jurisdiction  to  another,  they  may  be 
caWq^S.  2)ersonal  laws^  and  so  distinguished  from  laws  which  have 
had  extent  only  within  certain  territorial  limits.' 

Most  of  the  cases,  also,  which  are  cited  by  writers  on  this 
subject,  to  show  the  international  recognition  of  certain  laws 
denominated  personal  laws,  have  arisen  between  jurisdictions 
which,  though  having  distinct  local  laws,  were  under  one  sover- 
eignty or  supreme  political  power :  wherein,  therefore,  the  laws 
of  each  i)rovince  would  necessarily  be  regarded  as  jural  by  the 
tribunals  of  other  provinces  under  the  same  sovereign  :  as  in 
the  different  provinces  of  France,  when  different  local  laws  pre- 
vailed therein,  but  all  deriving  their  legal  force  from  a  single 
juridical  and  legislative  authority.' 

§  108.  The  various  legal  relations  which  a  person  may  sus- 
tain, in  respect  to  persons  and  things,  together  constitute  his 
legal  condition.  Some  of  the  rights  arising  out  of  those  rela- 
tions must,  in  their  nature,  be  local,  and  can  be  exercised  only 

'  Some  states,  tbougli  correlatively  independent,  may  still  be  so  connected  by  a 
customary  ii.ternational  law,  tbat  laws  aflfecting  the  condition  of  tlieir  respective  in- 
habitants have  a  reciprocal  recognition  in  their  several  tribunals  which  is  not  given  by 
those  tribunals  to  laws  particularl}'  derived  from  other  states.  As,  for  example,  the 
various  dominions  constituting  modern  Germany.  Comp.  Sangny  :  Heut.  R.  R,  B. 
III.,  c.  i.,  §  348.     Waechter :  Archiv.  f.  d.  Civil"  Pr.,  Bd,  24,  p.  ^52. 

"  Pothier :  Coutumes  d'Orleans,  ch.  i.     Foelix  :  Droit  Internat.  Pr.,  p.  24. 


STATUS    IN   INTERNATIONAL   LAW.  101 

m  the  jurisdiction  wherein  they  were  first  created,  {cmte^  §  Y5.) 
But  the  individual  and  also  the  relative  rights  of  a  legal  person, 
if  considered  without  reference  to  any  specific  things,  may 
(irrespectively  of  their  political  guarantees,)  continue  the  same 
in  difterent  national  jurisdictions,  and  be  considered  continu- 
ing incidents  of  his  personal  condition.  In  a  vague  use  of  the 
words,  such  rights  are  often  denominated  j9e/'S6»;?aZ  rights.  When 
the  personal  condition  of  a  private  person  is  spoken  of,  or  a  law 
is  termed  a  law  of  condition,  the  term  has  reference  more  es- 
pecially to  the  possession  of  such  rights.  In  the  Roman  law, 
the  rights  which  might  be  attributed  to  private  persons  were 
classified  as  rights  belonging  to  difierent  conditions,  known 
under  the  name  oi  cajyut  or  status ,'  some  rights  being  recognized 
independently  of  local  laws,  as  being  founded  on  a  universal 
jurisprudence  or  jus  gentiu'in,  and  others  being  limited  to  the 
inhabitants  of  certain  localities,  being  ascribed  to  the  jus  jpro- 
prium,  or  civile,  Romanum} 

§  109.  If,  then,  by  the  private  international  law  which  ob- 
tains in  some  one  national  jurisdiction,  (either  from  positive 
legislation,  or  by  judicial  application  of  natural  reason,)  some 
relations  of  alien  persons  may  be  recognized  and  enforced  there- 
in which  have  existed  under  the  law  of  a  foreign  jurisdiction, 
it  will  be  remembered,  according  to  what  was  said  of  the  dis- 
tinction between  persons  and  things  in  the  first  chapter,  that  a 
legal  relation  can  have  that  character  only  by  a  recognition  of 
legal  persons,  and  their  capacity  for  legal  rights.  A  contract, 
if  internationally  recognized  as  the  effect  of  a  foreign  law,  is 
necessarily  known  to  the  judicial  tribunal  through  a  recognition 
of  a  capacity  to  contract  in  some  natural  person.  The  law  of 
the  capacity  of  natural  persons  for  legal  relations,  as  the  law  of 
personal  condition  or  status,  must,  therefore,  enter  into  the  inter- 
national recognition  of  municipal  laws  supporting  contracts. 
This  capacity  of  persons  is  also  an  object  of  legal  recognition  in 
other,  relations  of  persons  which  do  not  have  the  character  of 
contracts:  some  of  which  relations  are  recognized  in  difierent 
national  jurisdictions  as  having  a  foundation  in  universal  juris- 
prudence— the  historical  law  of  nations:  such  as  the  relations 

'  See  ante,  §§  1^  19,  and  §§  96,  97. 


102  STATUS    UNDER   LAW   OF   NATIONS. 

of  parent  and  child,  husband  and  wife,  guardian  and  ward. 
Tliese  relations  have  a  legal  existence  in  all  national  jurisdic- 
tions by  force  of  customary  law,  having  the  character  of  princi- 
ples of  universal  jurisprudence  :  altliougli  different  systems  of 
municipal  (internal)  law  may  differ  in  their  recognition  of  the 
inception  of  tliose  relations,  and  even  differ  in  tlieir  judgment 
of  the  combined  rights  and  obligations  arising  from  them. 

The  law  of  legal  capacity  and  personality  lies,  therefore,  at 
the  foundation  of  private  international  law,  as  well  as  at  that 
of  tlie  private  municipal  law,  received  or  existing  in  any  one 
nation  or  state  ;  and  the  relations  of  persons  which,  together 
with  distinctions  of  capacity,  constitute  freedom  or  liberty,  and 
slavery  or  bondage,  may  be  a  topic  of  international  private  law, 
applied  in  any  national  jurisdiction,  as  well  as  of  the  municipal 
(internal)  private  law  prevailing  therein.' 

§  110.  It  appears,  therefore,  that  when  it  is  attempted  to 
apply  the  general  principles,  herein  before  stated,  in  questions 
of  the  international  recognition  of  those  reciprocal  rights  and 
obligations  which,  in  relations  between  private  persons,  consti- 
tute a  condition  of  freedom  or  its  opposite,  the  first  princij^le 
which  will  apply  is,  that — 

AVhen  persons  appear  within  any  particular  national  juris- 
diction who  have,  by  the  law  of  a  previous  domicil,  held  such 
rights  or  sustained  such  obligations,  the  conditions  of  such  per- 
sons, in  respect  to  those  rights  and  obligations,  will  be  recog- 
nized, allowed,  sustained,  or  continued  by  the  judicial  tribunals 
of  the  new  forum  in  which  they  so  appear,  (unless  legislation 
intervene,)  when  the  relations  constituting  that  condition  are 
founded  on  principles  wdiich  have,  in  the  history  of  jurispru- 
dence the  character  of  universality,  or  of  being  j^art  of  a  law 
of  nations:  because,  as  has  been  shown,  this  historical  law  of 
nations — these  principles  of  a  universal  jurisjirudence — may  be 
judicially  received  to  indicate  what  relations  are  consistent  with 
that  measure  of  justice  which  the  state  intends  to  apply  :  though 
they  are  always  liable  to  be  disallowed,  within  the  jurisdiction 
of  each  state,  by  its  own  autonomic  legislative  and  juridical 

'  Ante,  §§  25—27,  and  §§  53,  54. 


STATUS   UNBEK   LAW   OF   NATIONS.  103 

action,  and  SO,  in  that  jurisdiction,  to  lose  their  antecedent  au- 
thority, as  guides  for  the  judicial  action  of  a  tribunal. 

This  laio  of  nations  may  include  principles  determining  the 
possession  of  either  individual  rights  or  of  relative  rights,  and 
may  thus  operate  as  a  law  of  status  or  personal  condition i 
which,  by  its  general  recognition  among  different  nations,  would 
then  have  a  personal  extent,  both  in  international  and  municipal 
(internal)  law.* 

§  111.  By  the  same  authority  from  which  every  principle 
of  this  law  of  nations  is  derived,  i.  e.,  the  concurrent  juridical 
action  of  different  states  in  international  relations,  some  princi- 
ples of  this  laio  of  nations,  determining  the  condition  or  status 
of  private  persons,  might  be  exclusively  applied  to  a  distinct 
class,  or  definite  portion,  of  mankind:  and  they  would  then  have 
a  peculiarly  personal  extent  and  character,  whether  manifested 
in  international  or  municipal  law :  being,  in  such  case,  a  law 
not  only  of  personal  condition,  but  a  law  of,  or  for,  certain  per- 
sons only :  though  being  also  properly  attributed  to  universal 
jurisprudence — the  law  of  nations — from  their  actual  historical 
recognition  among  all  nations." 

§  112.  A  condition,  or  status,  which  should  consist  simply 
in  the  possession,  or  non-possession  of  individual  or  absolute 
rights,  may  easily  be  supposed  to  continue  the  same  after  a 
change  from  one  jurisdiction  to  another.  Those  elements  of 
condition  which  arise  out  of  the  relations  oi  family — of  hus- 
band and  wife,  of  parent  and  child,  of  guardian  and  ward — 
may  also  be  the  same,  in  their  essential  features,  after  such  a 
change. 

Tlie  name  of  bondage,  or  servitude,  may,  as  has  been  stated 
in'  the  first  chapter,  be  attributed  to  various  conditions  of  obli- 
gation in  private  persons,  even  when  the  rights  correlative  to 
such  obligation  are  rights  of  other  private  persons  only ; — not 
of  the  state,  or  some  possessor  of  political  power,  {ante,  §  47.) 
When  spoken  of  as  the  condition  of  a  legal  person,  the  obliga- 
tions in  which  it  consists  may  exist  in  reference  to  persons  and 
things  peculiar  to  some  one  place,  or  jurisdiction  ;  or,  it  may  be 

^  In  connection  with  this  sectiol  see  particularly  ante,  §§  99,  100. 
'  See  ante,  §^  53,  58. 


104  STATUS   TNDER   LAW    OF   NATIONS. 

said,  the  relations  of  which  it  is  an  incident  may  have  an  essen- 
tially local  character ;  being  such  as  could  not  be  uplield,  or 
continued,  except  in  and  for  some  jurisdiction  by  whose  local 
law  they  were  created.  Tlie  relation  of  master  and  servant, 
when  consisting  in  the  involuntary  absolute  servitude  of  one 
person  in  respect  to  all  objects  of  action — correlative  to  the 
right  of  another  private  person,  is  one  which  might  continue 
the  same  in  any  jurisdiction.  "Whenever  the  servitude  is  lim- 
ited, and  in  reference  to  specific  local  personalities  things  or 
circumstances,  it  is  a  condition  which  cannot  exist  in  other 
states,  or  national  jurisdictions,  to  which  the  subject  of  that  con- 
dition may  be  transferred.  Such  a  condition  of  bondage  cannot, 
therefore,  become  one  recognized  by  universal  jurhpi'^udence^ 
or  a  law  of  nations.  Absolute  servitude  of  a  legal  person,  in 
respect  to  all  objects  of  action,  might,  however,  be  so  recognized 
under  principles  having  that  historical  character.  Still  more 
easily,  may  cAa^2'<3?  slavery  be  so  recognized;  it  being  a  condi- 
tion which  in  every  state  may  be  the  same ;  for  a  thing — the 
object  of  rights,  may  be  such  within  any  territorial  jurisdiction.' 

§  113.  Whatev^er  incidents  in  the  jjersonal  condition  of  an 
alien  should  be  ascribed  to  universal  jurisprudence,  by  the  tri- 
bunals of  any  one  national  jurisdiction,  would  be  sustained,  as 
under  the  international  private  law  of  the  forum,  while  he 
should  continue  therein  in  alienage,  and  would  become  recog- 
nized effects  of  the  municipal  {internal)  private  law  on  his  ac- 
quiring a  domicil ;  taking  eiFect  as  a  personal  la%v,  {ante^  §  54.) 
In  other  words,  the  rule  of  action,  to  which  those  incidents 
should  be  ascribed,  would  have  like  operation  in  the  new  forum 
upon  the  condition  of  the  person  coming  from  another  jurisdic- 
tion, whether  he  should,  or  should  not  acquire  a  domicil  in  the 
new  forum.  "While  considered  an  alien,  the  operation  of  such 
rule  would  be  classified  under  international  law ;  and  upon  his 
acquiring  a  domicil,  the  same  rule  would  become  a  recognized 
part  of  the  municipal  (internal)  law.  In  this  case,  there  would 
be  no  conflict  between  the  laws  of  difierent  jurisdictions,  and  no 
illustration  of  the  so-called  rule  of  comity,  {cinte,  §  96.) 

§  114.  If  any  incident  of  the  personal  condition  of  the  alien 

'  Compare  §§  44—47. 


LAW   OF   UNIVERSAL   PERSONAL   EXTENT.  105 

18  not  founded  on,  or  supported  by  this  universal  jurisprudence, 
or  historical  laio  of  nations,  its  support  in  the  forinn  of  juris- 
diction is  then  dependent  upon  the  principle  of  comity,  or  that 
principle  (the  reason  and  nature  of  which  has  been  before  ex- 
plained, §§  76-78,)  which  gives  admission  to  the  effects  of  for- 
eign laws,  so  far  as  natural  circumstances  of  condition  admit 
therein  of  the  continuous  existence  of  relations  which  first  arose 
under  the  law  of  the  former  domicil ;  and  the  foreign  law,  cre- 
ating those  rights  and  obligations,  may  receive  a  personal  extent 
under  the  authority  of  the  sovereign  of  the  new  forum — the  forum 
of  jurisdiction.  But  the  operation  either  of  the  law  of  nations — 
universal  jurisprudence — or  of  the  judicial  rule  of  comity,  upon 
the  condition  of  alien  persons,  may  always  be  contravened  by 
the  autonomic  legislation  of  the  supreme  power.  And  the  legal 
eflfect  of  each  is  also  constantly  subject  to  the  limitation  of  a 
judicial  application  of  rules,  identified  with  the  local  law,  (the 
internal  law,)  having  universal  personal  extent.  For  if  the 
local  law  attributes  any  rights,  or  obligations,  universally 
within  its  jurisdiction, — i.  e.,  to  all  natural  persons,  or  to  all 
natm'al  persons  in  certain  circumstances  of  natural  condition, 
the  possession  of  which  is  inconsistent  with  the  relations  for- 
merly sustained  by  such  persons  under  the  law  of  their  previous 
domicil,  then  the  rights  and  obligations  which,  in  those  rela- 
tions, constituted  conditions  of  freedom,  or  its  opposites,  cannot, 
according  to  the  general  principles  before  stated,  (§§  77,  88,)  be 
judicially  sustained,  nor  receive  a  personal  and  international 
extent,  under  the  authority  of  the  sovereign  of  the  forum  of 
jurisdiction,  either  by  force  of  comity — i\\e  judicial  rule — or  by 
being  the  effects  of  rules  which  may  antecedently  have  been 
actually  common  among  all  nations,  or  have  acquired  the  his- 
torical character  of  a  law  of  riations. 

§  115.  In  determining  what  principles  affecting  the  condi- 
tion of  persons  domiciled  under  the  local  law,  (or,  in  other 
words,  what  principles  of  the  internal  law,)  are  to  be  taken  to 
have  this  universal  personal  extent  to  all  natural  persons  within 
the  national  jurisdiction,  the  most  authoritative  indication  is  in 
such  statutory  enactments  as  may  give  this  extent  to  the  attri- 
bution of  any  right.     IS^ext  in  order  are  judicial  precedents  of 


106  ATTRIBUTION   OF   LEGAL   PEESONALITT. 

antecedent  tribunals  representing  the  same  political  source  of 
law ;  thongli,  from  the  manner  in  which  the  extent  of  any  prin- 
ciple is  jndicially  determined,  such  precedents  are  hardly  dis- 
tinguishable— sc2)arately  from  tlie  customary  recognition  of 
universal  jurisprudence,  (see  ante,  §§  99,  100.)  In  countries 
wherein  jurisprudence  has  long  been  developed,  the  test  of  this 
universality  of  extent  will  ordinarily  be  found  in  one  or  the 
other  of  these  sources  of  law — either  the  law  of  nalions,  or 
positive  legislation.  But  if  cases,  affecting  personal  condition, 
are  supposable  in  which  those  do  not  apply,  it  nuiy  be  taken  to 
be  a  legitimate  result  of  the  axiomatic  principles  of  jurispru- 
dence, rendered  legally  authoritative  by  the  practice  of  legis- 
lating states,  that  M-lierever  (in  whatever  national,  or  independent 
jurisdiction,)  the  juridical  declaration  of  capacity  for  legal 
rights  is  not  made  by  creating  a  relative  condition  of  legal 
superiority  for  certain  natural  persons  over  other  natural  per- 
sons, but  is  judicially  recognized  as  the  statement  of  a  law  in 
tlie  secondary  sense  of  the  word  laiv,  or  of  a  mode  of  existence, 
antecedent  to  all  rules  of  action  embraced  in  the  positive  law  of 
that  jurisdiction,  it  has  therein  (in  that  jurisdiction)  the  charac- 
ter of  a  hiAv  of  universal  personal  extent,  which  must  be  judi- 
cially applied  as  municipal  (internal)  law,  and  also  as  inter- 
national law.  Where,  therefore,  the  local,  or  municipal  law, 
operating  as  the  internal,  or  territorial  law,  upon  persons 
regarded  as  its  native,  or  domiciled  subjects,  takes  cognizance 
of  them  as  legal  pei-sons,  as  well  as  natural  persons,  attributing 
to  them  capacity  for  legal  rights  and  duties,  simply  as  a  part 
or  incident  of  the  attributes  of  natural  persons,  the  constituents 
of  society,  it  thereby  declares,  or  recognizes  a  natural  law  or 
principle — a  law  in  the  secondary  sense — whicli  must  be  re- 
ceived and  applied  by  its  tribunals,  or  judicial  officers,  as  a 
universal  law  in  reference  to  natural  persons  appearing  within 
its  jurisdiction.  And,  in  this  case,  no  law  of  a  foreign  jurisdic- 
tion regarding  a  natural  person  as  a  thing,  or  chattel — the  ohject 
of  rights  only,  without  capacity  for  rights — can  be  allowed  by 
those  tribunals  to  have  international  recognition;  unless,  by 
direct  act  of  positive  legislation,  (statutes,  or  treaties,)  such  law 
of  a  foreign  jurisdiction,  formerly  binding  on  the  alien,  is  al- 


ATTRIBUTION   OF   LEGAL   BIGHTS.  107 

lowed  to  take  effect  as  a  law  personal  to  him,  and  exceptional 
to  the  local,  or  territorial  law.  The  alien  must  be  regarded,  in 
all  I'ndicial  processes,  like  the  native  or  domiciled  inhabitants 
of  tlie  jurisdiction,  as  being  possessed  of  all  the  rights  which  the 
local  law  attributes  to  natural  persons  who  are  not  aliens,  and 
as  owing  only  those  obligations  which  are  derived  from  some 
law  for  legal  j[>ersons,  and  of  such  a  character  that  they  may  be 
recognized  internationally  without  contravening  in  other  respects 
the  law  of  natural  rights  and  universal  application  as  judicially 
known  in  that  jurisdiction.' 

§116.  But  personality  or  capacity  for  legal  rights  might  be 
recognized  in  all  natural  persons  by  the  laws  of  one  national 
jurisdiction,  though  relations  might  also  be  established,  under 
those  laws,  which  would  give  to  one  person  a  control  over 
another,  such  as  is  inconsistent  with  the  legal  possession  of  per- 
sonal liberty  by  the  latter ;  and  these  rights  of  control  and  cor- 
relative obligations  of  subjection  might  be  internationally  recog- 
nized in  other  national  jurisdictions,  as  the  incidents  of  a  rela- 
tion between  legal  persons.  Tims  the  loss  of  personal  liberty 
under  the  criminal  law  of  another  state  might  be  international  • 
ly  supported,  while  the  personality  of  the  individual  whose 
freedom  is  compromised  or  denied  is  not  disallowed.  Or  the 
relations  of  parent  and  child,  guardian  and  ward,  master  and 
servant, — where  the  servitude  of  the  latter  is  involuntary,  though 
not  of  the  chattel  character, — might  be  internationally  allowed 
in  a  jurisdiction  wherein,  on  the  grounds  above  stated,  chattel 
davery  could  be  disallowed  or  ignored,  under  a  judicial  applica- 
tion of  the  private  international  law.  But  it  is  impossible  to 
conceive  of  a  legal  attribution  of  personality  without  at  the 
same  time  attributing  some  definite  or  specific  legal  rights,  indi- 
vidual or  relative  [ante  §§  45, 46.)  Whenever  legal  obligations  are 
attributed  to  a  natural  person,  the  law,  which  creates  those  obli- 
gations, must  enable  him  by  a  legal  capacity  for  choice  and 
action,  to  fulfil  those  obligations, — recognizing  such  action  to 
be  according  to  a  legal  faculty  or  power  of  action, — and  conse- 
quently recognizing  a  certain  possession  of  legal  rights.  It 
would  otherwise  enable  others  to  act  in  reference  to  him  simply 

"  See  mU,  §  102, 


108  TJNIVEESAL   ATTRIBUTION   OF   A    RIGHT. 

as  an  object ;  and  so  make  liim  a  chattel  or  thing,  to  which  not 
even  legal  obligations  can  be  attributed.  Legal  personality 
must  consist  in  and  by  rights,  (§§  43,  44.)  llic  municij)}!]  (local 
or  internal)  law  must  make  this  recognition  of  personality  by  the 
attribution  of  some  rights ;  though  it  is  not  necessary,  and  is, 
indeed,  naturally  impossible,  that  all  persons  should  sustain 
similar  relations.  Some  rights,  however,  may  be  attrib\ited  to 
persons  which  are  not  incidents  of  relations  of  specific  persons 
to  other  specific  persons,  or  wliicli  may  be  equally  attributed  to 
any  number  of  persons ;  while  others  must  be  taken  to  be  inci- 
dents of  relations  caused  by  laws  having,  necessarily,  limited 
personal  extent,  (§§  55-57.)  Where  by  the  local  or  internal 
law  all  domiciled  inhabitants  are  recognized  as  legal  persons, 
irrespectively  of  the  possession  of  relative  rights,  ordinarily  so 
called,  (§  40,)  and  that  recognition  of  legal  personality  is  made, 
not  simply  as  the  attribution  of  a  naked  right  to  life,  protected 
by  public  criminal  law,  vindicating  the  welfare  of  the  state, 
(§  45,)  but  by  attributing  definite  individual  or  absolute  rights, 
protected  by  the  private  law  of  remedy, — there  the  local  law, 
attributing  those  rights,  must  be  looked  upon  as  the  recognition 
of,  or  statement  of,  a  law  in  the  secondary  sense, — a  natural 
law ;  and  those  rights  be  taken  to  be  the  incidents  of  a  state  of 
things  existing  independently  of  rules  of  action  established  by 
the  state.  Being  of  this  character  it  may  be  judicially  taken  to 
be  a  law  of  universal  personal  extent ;  that  is,  one  applying  to  all 
persons  within  the  power  or  recognized  territorial  jurisdiction  of 
that  law,  and  those  rights  ma}^  be  attributed  to  all,  as  being 
natural  or  primordial  rights, — that  is,  rights  incident  to  the  con- 
dition of  persons  in  the  simple  primordial  relation  of  individual 
members  of  civil  society.  Where  the  right  of  personal  liberty 
is  thus  attributed  by  the  municipal  (internal)  law  to  each  indi- 
vidual domiciled  within  the  limits  of  a  state  or  national  juris- 
diction, it  must  be  taken  to  be  attributed  to  those  natural  per- 
sons under  a  law  intended,  by  its  political  source,  to  be  a  law  of 
universal  personal  application;  Avliich  is  to  be  judicially  taken 
to  apply  to  all  persons  within  the  territorial  jurisdiction  of  that 
^^w,  irrespectively  of  their  domicil  or  their  previous  subjection 
to  other  laws  or  jurisdictions;  and  tins  attribution  of  that  right 


THE  EFFECT  ON  STATUS.  109 

^vill  be  made  whenever  the  condition  of  a  person  is  to  be  deter- 
mined under  the  private  international  law  of  that  jurisdiction.' 

§  117.  But  where  the  local  (internal)  law  itself  supports  rela- 
tions, between  its  domiciled  inhabitants,  in  which  some  persons 
do  not  enjoy  the  rights  of  pei-sonal  liberty,  or  are  placed  in  a 
condition  of  obligation,  correlative  to  the  rights  of  others,  which 
may  be  called  a  condition  or  status  of  slavery  or  bondage, — 
there  the  local  law  does  not  attribute  the  right  of  personal  free- 
dom, nor  any  other  right, — inconsistent  with  such  condition  of 
bondage, — universally,  or  to  all  natural  persons.  And,  according 
to  principles  before  stated,  the  slave  or  bond  condition  of  an 
alien,  caused  by,  or  existing  under  the  law  of  his  former  domicil, 
will  receive  judicial  support,  or  become  realized,  actualized,  or 
carried  out  under  the  "  comity  of  nations  "  or  the  judicial  rule 
which  is  known  under  that  name  :  being  then  a  legal  effect 
ascribed  to  the  private  international  law  of  the  forum  of  juris- 

'  Though  there  may  be  a  great  ■want  of  harmony  among  the  writers  who,  distin- 
guishing between  real,  personal  and  mixed  statutes,  have  attempted  to  give  general  rules 
for  their  international  recognition,  they  have  unquestionably  agreed,  to  a  very  great 
extent,  in  saying  that  the  slafiis,  condition  or  capacity  for  rights  of  a  natural  person  is 
every  where  judicially  determinable  according  to  the  law  of  his  domicil.  See  Story : 
Conf.  L.  eh.  iv.  and  the  older  authorities  there  cited.  Savigny  :  Heut.  R.  R.  B.  III.  c. 
l  §  362.     Foelix  :   Dr.  Int.  Pr.  §  29. 

This  principle  has  been  so  often  judicially  applied  that,  subject  to  certain  excep- 
tions, more  or  less  generally  admitted,  it  may  be  regarded  as  a  rule  of  the  customary 
international  private  law  of  civilized  states,  having  the  character  of  a  rule  of  universal 
jurisprudence .  (See  ante  §  93.)  But  no  one  exception  to  this  rule  is  more  harmoni- 
ously recognized  by  the  authorities  than  this, — that  the  condition  of  involuntary  servitude 
established  by  the  law  of  the  domicil,  wiU  not  be  recognized  in  another  independent 
territory  wherein  such  a  condition  is  unknown  to  the  local  law.  See  Story  :  Conf. 
L.  ^  96.  Savigny  :  B.  III.  c.  i.  §  349  ;  and  §  365,  A.  7.  W.-echter :  Archiv.  Bd.  25, 
p.  172.  Schielfner:  §  34.  Fcelix:  Dr.  Int.  Pr.  §  31,  note.  Phillimore  :  lutemat.  L. 
p.  835. 

These  authors,  however,  do  not  now  explain  how  the  tribunal  is  to  know  that  the 
law  which  it  has  to  determine  and  administer  forbids,  in  this  case,  the  operation  of 
the  general  rule.  They  either  state  the  exception  as  one  founded  on  the  customary 
international  law  of  all  states,  or  of  a  certain  number  of  states,  or  of  some  one  state, 
(making  it  a  rule  of  some  one  national  law,)  or  else  they  assume  that  the  tribunal  will 
derive  it  by  a  subjective  conception  of  the  will  of  the  legislator  or  juridical  sovereign. 
In  other  words,  they  assume  that  the  tribunal  must  declare  the  existence  of  such  a 
condition  contraiy  to  jural  rules  In  the  first  alternative  it  is  evident  that  the  custom- 
ary international  law,  pither  of  all  states,  or  of  a  number  of  states,  or  of  some  one 
state,  on  this  point,  may  be  different  at  different  times ;  in  the  other,  that  it  is  the 
moral  judgment  of  these  writers  themselves  which  makes  the  rule,  and  that  it  is  an 
a  piori  assumption  on  their  parts. 

Ajid  there  is  another  deficiency  in  this  reference  to  the  law  of  the  domicil ;  for  since 
the  domicil  of  a  person  is  determined,  in  a  great  degree,  by  his  own  act  of  choice,  (see 
Savigny  :  Heut.  R.  R.,  B.  III.  c.  i.  g  360,  ^  2,)  the  question  of  domicil  may  depend  upon 
the  status  ;  fjr  since  a  slave  cannot,  as  such,  elect  a  domicil,  the  question  of  his  dom- 
icil may  involve  a  prior  detennination  of  his  status. 


110  EFFECT   ON   CONDITIONS   OF   BONDAGE. 

diction,  tlmt  is,  to  a  rule  identified  in  its  coercive  authority  with 
the  rest  of  the  municipal  (national)  law.' 

§  118.  But  tliouffli  a  condition  of  slavery  or  bondao;e  may 
exist  under  the  local  (internal)  law  of  the  forum  of  jurisdiction, 
it  may  therein  be  considered  accordant  with  natural  reason  in 
respect  to  certain  specific  local  circumstances ;  beino^  the  etfect 
of  a  law  applying  to  a  portion  of  the  domiciled  inhabitants  in 
reference  to  the  existence  of  those  circumstances  only,  and 
having  a  peculiarly  local  or  national  character.  And,  notwith- 
standing the  existence  of  this  slavery  or  bondage,  there  may 
be,  in  the  municipal  (national)  law  of  the  same  jurisdiction,  a 
general  or  universal  attribution  of  personal  liberty  and  other 
riglits  inconsistent  with  the  condition  of  the  alien  under  the  law 
of  the  foreign  state,  to  all  natural  persons  who  are  not  in  those 
2)eculiar  circumstances  of  local  character  by  which,  or  in  refer- 
ence to  which,  the  slavery  existing  under  the  internal  law  is 
legalized,  i.  e.  declared  jural — consistent  with  natural  reason. 
In  this  case  the  slavery  of  the  alien  could  not  be  judicially  sup- 
ported on  the  ground  of  comity — the  rule  so  called  ;  because 
still  contrary  to  principles  having  (with  this  recognized  excep- 
tion under  the  internal  law)  universal  extent  within  that  juris- 
diction ;  even  though  the  local  slavery  should  constitute  a  status 
— a  condition  of  rights  and  obligations — very  similar  in  its  social 
consequences  to  that  existing  under  the  foreign  law. 

§  119.  But  though  the  bond  condition  of  an  alien  should  not 
be  maintained  and  continued  under  the  law  of  the  forum  of 
jurisdiction,  because  contrary  to  a  universal  attribution  of  per- 
sonal freedom  under  the  local  law,  it  does  not  follow  that  tha,t 
condition  would  not, .under  the  juridical  power  of  the  satne 
foruin^  be  recognized  to  have  been  lawful  in  the  place  of  his 
domicil — the  foreign  country.  If,  indeed,  it  is  not  a  necessary 
consequence  of  fundamental  principles,  yet  it  has  always  been 
held,  in  the  customary  jurisprudence  of  every  country,  that  the 
jural  character  or  rightfulness  of  every  efiect  of  foreign  law 
shall  be  admitted  at  least  so  far  as  that  effect  is  confined  to  the 
national  jurisdiction  of  that  law  ;  whatever  maybe  the  juridical 
opinion  of  other  sources  of  law  respecting  such  efi'ect  as  the 

*  Compare  ante  §  68,  note. 


LIMITS   OF   THE   EFFECT.  Ill 

basis  of  riglits  and  obligations  to  be  enforced  within  their  own 
jurisdictions.  In  other  words,  the  relations  or  actions  created 
or  allowed  by  a  foreign  law  are  customarily  recognized  to  have 
been  rightful,  in  and  for  its  own  domain ;  even  when  rights  and 
obligations  incident  to  those  relations  or  actions  are  not  main- 
tained or  continued  in  \\\q  forum  of  jurisdiction.  Therefore, 
although  the  right  of  an  alien  master  in  respect  to  his  slave, 
sanctioned  by,  or  existing  under  the  foreign  law — the  law  of 
their  domicil — should  be  disallowed  in  the  jurisdiction  to  which 
they  are  alien,  yet,  under  a  judicial  application  of  natural 
reason,  (that  is,  irrespectively  of  positive  legislation,)  it  will  be 
held  to  have  been  jural  or  rightful,  as  well  as  legal,  in  the  for- 
eign country — the  domicil  of  such  master  and  slave  :  or  it  will, 
at  least,  not  be  held  to  have  been  a  violation  of  rights  which  in 
the  forum  of  jurisdiction  may  be  attributed  to  the  slave,  nor 
the  subject  of  legal  remedy  in  that  forum. 

§  120.  By  the  same  reasoning  it  would  appear  that  even 
where,  under  the  laio  of  the  forum.,  the  right  of  the  alien  mas- 
ter created  by  the  law  of  their  domicil  would  not  continue,  or 
be  maintained  as  against  the  slave,  yet  rights  and  obligations 
existing  under  the  latter  law  as  between  the  master  and  third 
parties,  in  respect  to  the  slave,  would  still  be  recognized  and 
m.aintained.  The  validity  of  the  master's  right  in  and  for  the 
place  of  his  foreign  domicil  being  admitted,  would  lead  to  a 
judicial  recognition  of  the  obligations  of  tliird  parties  correla- 
tive to  that  right.  The  right  of  civil  recompense  for  violation 
of  his  right  as  master,  in  the  place  of  his  domicil,  might,  there- 
fore, be  maintained  against  tliird  parties  in  a  jurisdiction 
wherein  the  relation  itself,  as  between  the  master  and  slave, 
could  not  continue.  So,  too,  contracts  founded  upon  the  owner- 
ship of  slaves  in  foreign  states  would  be  judicially  recognized, 
and  the  rights  and  obligations  growing  out  of  them  be  judicially 
maintained  in  jurisdictions  wherein,  under  the  private  inter- 
national law,  the  condition  of  slavery  as  between  the  alien 
owner  and  his  chattel  slave,  or  bondsman,  could  not  continue.' 

'  But  in  some  systems  of  municipal  (national)  law  a  character  of  immorality  is 
ascribed  to  certain  actions  which  prevents  tliem  from  becoming,  under  the  jurisdic- 
tion of  tliose  systems,  tlie  basis  of  lethal  rights  and  obligations ;  even  though  they  may 
have  created  such  rights  and  obligations  in  and  for  the  foreign  jurisdiction  where  such 
actiou  took  place.     Compare  Kobiuson  v.  Bland,  2  Burr.,  1084. 


112  REGARD   TO   DOinCTL. 

§  121.  Tlie  operation  of  law  upon  the  relations  of  private 
persons  is  a  consequence  of  their  being  actually  within  the  ter- 
ritoriiil  dominion  of  the  sovereign  state  or  nation  from  whom 
that  law  proceeds.  But,  as  has  been  stated,  (§  54-,)  those  cir- 
cumstances which,  in  international  jurisprudence,  are  techni- 
cally called  domicile  determine  in  many  cases  whether  the 
condition  of  a  person  shall  be  controlled  directly  by  the  law  of 
the  jurisdiction  (the  internal  law)  in  which  he  is  found,  or,  indi- 
rectly, by  that  of  some  other  to  which  he  may  have  formerly 
been  subject.  In  many  instances,  the  intention  of  the  person 
to  acquire  a  new  domicil  will  be  held  to  vary  the  legal  nature 
of  his  relations  both  in  respect  to  persons  and  in  respect  to 
things.  Servants,  or  slaves,  either  with  or  without  their  mas- 
ters or  owners,  may  appear  in  a  foreign  jurisdiction,  (a  jurisdic- 
tion other  than  that  of  their  domicil,)  either  as  aliens  seeking  a 
new  domicil  therein,  or  as  temporary  inhabitants,  still  continu- 
ing, in  view  of  the  law  of  the  foi^rn^  to  have  their  former 
domicil.  But,  in  a  judicial  application  of  natural  reason  to  the 
condition  of  either  of  these  classes  of  aliens,  the  principles 
which  have  been  herein  before  stated  are  equally  of  force. 
Whenever  by  the  operation  of  these  principles,  or  by  positive 
legislation,  the  slavery  of  an  alien  person  is  continued  after 
a  change  of  domicil,  it  becomes  a  result  of  the  municipal  (in- 
ternal) law  of  the  jurisdiction  of  which  he  becomes  a  domiciled 
subject.  In  the  other  case, — that  is,  when  the  domicil  is  not 
changed,  it  is,  from  the  continuing  alien  character  of  the  person, 
a  result  of  the  private  international  law  of  the  same  forum. 

§  122.  It  is  always  to  be  remembered  that  the  international 
recognition  of  personal  condition  which  has  been  considered  in 
this  chapter  is  only  2^  judicial  act,  determined  by  general  prin- 
ciples of  jurisprudence,  and  that  it  is  always  subject  both  to  the 
customary  law  on  the  subject  (anterior  judicial  practice)  which 
may  have  prevailed  in  the  forum  of  jurisdiction,  and  also  to  the 
positive  legislation  of  the  sovereign  of  the  forum,  giving  an 
original  rule  extending,  or  limiting,  the  entire  judicial  discre- 
tion of  its  tribunals.*  Tlie  action  of  the  state,  or  nation,  being, 
as  compared  with  the  action  of  its  tribunals,  autonomic,  or  in- 

•  Schaeffner  :  §  31.     Savigny  :  Heut.  R.  R.,  B.  III.,  c.  i.,  §  361  A. 


SUPEEMACT  OF  LEGISLATOR.  118 

dependent  of  law,  in  admitting  or  rejecting  a  foreign  law  upon 
the  ground  of  comity,  or  in  receiving  or  repudiating  a  principle 
before  ascribed  to  the  law  of  nations — universal  jurisprudence. 

Note. — In  connection  with  the  province  of  the  judicial  officer  in  this  respect,  a 
principle  cannot  be  forgotten  by  American  tribunals  which  is  no  where  so  fuUy  illus- 
trated as  in  the  jurisprudence  which  they  apply;  but  in  stating  which,  in  an  ele- 
mentary essay,  it  may  be  well  to  cite  an  authority  of  foreign  origin.  Waechter,  in  a 
note  to  the  passage  herein  before  cited,  (§84,  n,)  after  the  words — "  that  the  requi- 
sition of  a  constitutional  form  and  the  limits  of  constitutional  power  alone  determine  its 
validity" — i.  e.,  validity  of  the  statute — observes:  (Tr.)  "The  determination  of  this 
must,  unquestionably,  appertain  to  the  judge.  That  is  to  say — in  our  constitutional 
states — he  is  bound,  in  dispensing  the  law,  to  follow  the  legislative  dispositions  of  the 
government  only  when  they  conform  to  the  requisitions  of  the  constitutional  law.  It 
is  true  that  he  is  merely  the  servant  and  instrument  of  the  law,  (Rechtsgesetzes,)  but, 
certainly,  he  is  the  servant  of  a  valid  law  (Gesetzes)  only.  It  is,  therefore,  both  his 
province  and  his  duty,  before  applying  a  rule  which  claims  to  he  a  law,  or  an  exercise 
of  the  legislative  function,  to  examine,  according  to  the  existing  constitutional  law, 
whether  it  actually  is  a  law, — that  is,  whether  it  has  those  qualities  which,  according 
to  the  constitution,  must  belong  to  a  valid  law.  If  these  are  wanting,  it  is  his  duty 
tiot  to  regard  the  decree  as  a  valid  law.  It  is  true  that  this  has  of  late  been  denied 
by,  &c.,  [citing  a  German  writer.]  But  this  opposite  view  would  make  the  judge, 
in  his  function,  the  subject  of  the  executive  power,  [that  is,  in  a  state  where  the  ex- 
ecutive and  legislative  functions  are  not  clearly  separated,]  and  destroy  both  his  con- 
stitutional independence  and  the  right  of  the  citizen,  which  is,  to  owe  a  conslilutiondl 
obedience,  only,  to  the  executive  power,"  &c.,  &c.     [Giving  the  German  authorities.] 


CHAPTER  m. 

OF  THE  ESTABLISHMENT  OF  MTJNICIPAL  (NATIONAL)  LAW  IN  THE 
ENGLISH  COLONIES  OF  NORTH  AMERICA.  PERSONAL  EXTENT  OF 
THE   COMMON   LAW   OF   ENGLAND. 

§  123.  It  has  been  shown  in  the  first  chapter  in  what  sense 
it  may  be  said,  that  the  extent  of  territory  over  wliich  any  pos- 
sessor of  sovereignty  shall  exercise  dominion  is  determined  by 
public  international  law  (§  51).  "When  changes  take  place  in 
tlie  geographical  limits  of  the  domain  so  held  by  the  pos- 
sessors of  sovereign  powers,  the  same  law,  or  more  strictly,  per- 
haps, those  principles  of  the  law  of  nations, — universal  jurispru- 
dence,— which  enter  equally  into  municipal  and  international 
public  law,  and  are  sometimes  denominated  the  natural  or  neces- 
sary law  of  nations,  may  be  regarded  as  determining  the  munici- 
pal (national)  law  which  shall  thereafter  prevail  in  the  territory 
thus  transferred  or  acquired ;  at  least  until  the  new  sovereign 
has  exercised  empire  in  establishing  or  promulgating  law  by 
positive  enactments.  Where  such  territory  has  been  previously 
occupied  by  a  nationality  having  a  political  organization,  with 
sovereignty  manifested  in  the  promulgation  of  laws,  it  is  a  prin- 
ciple of  the  law-  of  nations  entering  into  international  and  mu- 
nicipal law,  which,  if  not  also  a  natural  or  necessary  principle, 
lias  always  been  received  in  the  customary  jurisprudence  of  civ- 
iHzed  states,  that  the  laws  formerly  prevailing  with  territorial 
extent  therein  remain  in  force,  and  act  as  before  upon  all  pri- 
vate persons  within  that  territorial  jurisdiction  until  changed 


LAW    AFTER   CONQUEST.  115 

by  the  new  sovereign ; '  with  the  necessary  exception  of  the  pre- 
viously existing  public  law  or  law  of  political  constitution, 
which  is  implied  in  the  supposed  fact  of  a  change  of  dominion, 
and  also  with  an  exception  which  is  based  upon  the  jural  char- 
acter of  states  promulgating  law  as  the  rule  of  right,  viz :  that 
former  laws  become  abrogated,  by  the  act  of  acquisition,  which 
are  contrary  in  effect  to  rules  which,  by  the  tribunals  of  the  new 
sovereign,  are  taken  to  have  a  universal  extent;  or  which,  it  may 
be  said,  are  taken  to  have  moral  force  in  human  relations,  as 
natural  principles,  independently  of  the  will  of  the  state  ;  or 
which,  in  the  language  of  Blackstone  in  a  passage  hereinafter 
cited,  are  taken  to  be  part  of  "  the  law  of  God,"  as  interpreted 
by  the  new  possessor  of  sovereignty, — and  so  held  to  be  univer- 
sally applicable.*  Where  the  territory  acquired  has  been  previ- 
ously unoccupied  by  any  such  power  its  future  laws,  that  is,  the 
laws  which  shall  therein  prevail  as  the  territorial  law,  must 
originate  in  the  authority  of  the  sovereign  acquiring  it. 

§  124.   It  is  a  principle  of  the  law  of  nations^  contained  in 

'  Bo^vyer :  Univ.  Pub.  Law,  p.  158.  Sir  Wm.  Jones  :  Inst,  of  Hindu  Law,  Art.  203. 
"  In  the  part  regarding  the  duty  of  the  royal  and  military  caste  or  Kchatriyas,  it  is 
laid  down,  that  after  a  king  has  conquered  a  country,  he  ought  to  maintain  the  laws 
of  the  conquered  nation  as  they  have  been  promulgated."  *  *  "  The  preservation 
of  the  Hindu  law  after  the  Mohammedan  conquest  is  a  remarkable  fact,  as  the  Mo- 
hammedan law  has  no  provision  resembling  the  laws  of  Manou  mentioned  above,  but 
on  the  contrary  does  not  tolerate  the  laws  of  a  conquered  nation." 

Clark's  Colonial  Law,  p.  4.  Campbell  v.  Hall,  Cowp.  209.  Duponceau  on  Juris- 
diction, p.  65.     I  Kent's  Comm.  (7th  Ed.)  p.  178,  note. 

"  2  Peere  Williams,  75,  (1722,)  it  was  said  by  the  Master  of  the  Rolls  to  have  been 
determined  by  the  lords  of  the  Privy  Council,  upon  an  appeal  from  the  foreign  planta- 
tion. *  '  *  "  3d.  Until  such  laws  be  given  by  the  conquering  prince,  the  laws 
and  customs  of  the  conquered  country  shall  hold  place,  unless  when  these  are  contrary 
to  our  religion  or  enact  any  thing  that  is  malum  in  se,  or  are  silent;  for  in  all  such 
cases  the  law  of  the  conquering  country  shall  prevail  "  To  this  extent  only  is  the  ex- 
ception to  the  general  rule  true  which  is  made  in  Calvin's  case  (17  Coke,  R.  7) — "if  a 
Christian  countrj^  is  conquered  the  laws  remain,  but  if  it  be  infidel,  the  laws  of  the  infidel 
are  ipso  facto  abrogated,"  etc.  In  P>lankard  r.  Galdy  (1694),  as  reported  in  Salkeld,  411, 
the  court  "  held  that  in  the  case  of  an  infidel  country  their  laws  do  not  entirely  cease 
but  only  such  as  are  against  the  law  of  God."  It  would  be  difficult  to  find  an  illustra- 
tion of  such  exception  in  the  whole  history  of  Britisli  conquest  and  colonization.  For 
when  lands  occupied  by  savage  tribes  have  been  acquired,  the  country  has  been  taken 
to  have  had  no  territorial  law.  In  Campbell  ;•.  Hall,  Cowp.  209,  Lord  Mansfield  (1774) 
said :  "  The  laws  of  a  conquered  country  continue  in  force  until  they  are  altered  by  the 
conqueror;  the  absurd  exception  as  to  Pagans,  mentioned  in  Calvin's  case,  shows  the 
universality  and  antiquity  of  the  maxim.  For  that  distinction  could  not  exist  before 
the  Christian  era,  and  in  all  probability  arose  from  the  mad  enthusiasm  of  the  Croisades." 
Whether  laws  allowing  torture  have  been  abrogated  by  British  d'imiiiioii,  see  Stokes 
on  the  Colonies,  p.  11,  Mostyu  «.  Fabrigas,  Cowper's  R.  169;  Si i- Thomas  Pictou's 
case,  30  Howell's  St.  Trials.     Report  of  the  Madras  Torture  Commission. 


116  PEESONAL   LAWS COLONIZATION. 

the  first  and  second  of  the  three  maxims,  stated  in  the  previous 
chapter,  which  enter  into  the  foundation  of  international  and 
municipal  law,  that,  so  far  as  laws  are  territorial  in  their  extent, 
persons  passing  from  one  territory  to  another  change  at  the 
same  time  the  municipal  (national)  law  to  which  they  are  sub- 
ject. But  laws  also  have  a  distinct  personal  extent  when  sus- 
tained, as  applying  to  certain  persons,  by  some  sovereign  power 
having  jurisdiction  over  them.  This  personal  quality  of  laws  is 
manifested  in  colonization ;  where  tlie  laws  which  prevail  in 
the  territory  colonized  depend  upon  the  extension  given  by  the 
sovereign  of  the  colonist  to  the  laws  binding  on  him  in  his 
original  domicil.  In  order  that  the  personality  of  laws  may  be 
thus  manifested  in  colonization,  or  that  laws  may  thus  accom- 
pany colonists  beyond  the  limits  of  their  former  domicil,  it  is 
evident  tliat  the  sovereign  national  power,  from  whicli  tliat  law 
proceeds,  must  also  be  sovereign  over  the  territory  to  which  the 
person  is  transferred.  Herein  the  maintenance  of  personal  laws 
in  colonization  is  part  of  the  municipal  (internal)  law  of  some 
one  state,  and  difiers  from  that  recognition  of  the  law  of  a  for- 
eign domain,  as  a  law  personal  to  an  alien  immigrant,  which 
may  be  made  in  international  law.  And  here  it  is  evident  that 
the  exposition  of  laws  in  their  personal  and  territorial  extent 
implies  a  knowledge  of  such  terms  as  sovereignty,  domain,  na- 
tive subject,  alien  subject,  &c.,  which  are  explained  by  those 
axioms  or  definitions  which  make  the  necessary  law  of  nations, 
and  are  presupposed  in  international  and  municipal  law.* 

§  125.  From  the  earliest  instances  of  the  political  annexation 
of  foreign  territories  to  the  dominion  of  the  British  crown,  there 
has  been  much  dispute  in  English  jurisprudence  respecting  the 
personal  extent  of  the  laws  of  England  in  reference  to  such  ter- 
ritories.*    The  occupation  of  countries  in  the  Western  Continent 

'  Ante  §§  48,  49. 

'^  A.  D."]  607— Calvin's  case,  (case  of  the  Post-nati  in  Scotland,)  7  Co.  R.  17;  Le 
case  de  Tanistr\-  (under  Brehon  law  of  Ireland)  Davis's  R.  28 ;  1666— Vnughan  R.  pp. 
290,  402,  (relating  to  Ireland  and  Wales)  ;  1684 — Wytham  r.  Dutton,  3  Mod.  160  ;  re- 
versed in  1694 — Dutton  r.  Howell  &c..  Shower's  Pari,  cases,  24;  1694 — Blankard  v. 
Galdv,  4  Mod.  R.  215,  and  Salk.  411;  1705— Smith  i-.  Brown  &  Cooper,  Salk.  666, 
Holt  R.  495.  Smith  v.  Gould,  ^alk.  667,  and  2  Lord  Rayin.  1274;  1769— Rex  v. 
Vaughan,  4  Burr.  2500;  1774— Mostvn  v.  Fabrigas,  1  Cowp.  161  and  Campbell  r. 
HaU,  1  Cowp.  204;  1802— CoUett  v.  Keith,  2  East,  260;  1817— Atty.  Gen.  v.  Stew- 


blackstone's  doctrine.  117 

before  unoccupied  by  civilized  societies,  presented  an  unprece- 
dented question  of  jurisdiction.     The  leading  authorities  on  this 
point  are  thus  summed  up  by  Blackstone  (Comm.  Introd.  p. 
107)  in  a  passage  often  cited  :  *   "  Plantations  or  colonies  in  dis- 
tant countries  are  either  such  where  the  lands  are  claimed  by 
right  of  occupancy  only,  by  finding  them  desert  and  unculti- 
vated and  peopling  them  from  the  mother  country,  or  where, 
when  already  cultivated,  they  have  been  gained  by  conquest  or 
ceded  to  us  by  treaties.     And  both  these  rights  are  founded  upon 
the  law  of  nature,  or  at  least  upon  that  of  nations.     But  there 
is  a  difference  between  these  two  species  of  colonies  with  re- 
spect to  the  laws  by  which  they  are  bound.     For  it  hath  been 
held,  (2  Salk.  411,  666,)  that  if  an  uninhabited  country  be  discov- 
ered and  planted  by  English  subjects,  all  the  English  laws 
then  in  being,  which  are  the  birthright  of  every  subject,  (2  P. 
"Wms.  75,)  are  immediately  there  in  force.     But  this  must  be 
understood  with  very  many  and  veiy  great  restrictions.     Such 
colonists  carry  with  them  only  so  much  of  the  English  law  as  is 
applicable  to  their  own  situation  and  the  condition  of  an  infant 
colony;  such  for  instance  as  the  general  rules  of  inheritance  and 
of  protection  from  personal  injuries.     The  artificial  refinements 
and  distinctions  incident  to  the  property  of  a  great  and  com- 
mercial people,  the  laws  of  police  and  revenue,  the  mode  of 
maintenance  for  an  established  clergy,  the  jurisdiction  of  spir- 
itual courts,  and  a  multitude  of  other  provisions,  are  neither 
necessary  nor  convenient  for  them,  and  therefore  they  are  not 
in  force.     What  shall  be  admitted  and  what  rejected,  at  what 
times  and  under  what  restrictions,  must  in  case  of  dispute  be 
decided  in  the  first  instance  by  their  own  provincial  judica- 
ture, subject  to  the  revision  and  control  of  the  king  in  council : 
the  whole  of  their  constitution  being  also  liable  to  be  new-mod- 
elled and  reformed  by  the  general  superintending  power  of  the 

art,  2  Mer.  159  ;  1824— Forbes  v.  Cochrane,  2  Barn.  &  Cress.  463;  1836— Beaumont 
V.  Barret,  1  Moore's  cases  before  P.  C.  75. 

Similar  questions  must  have  arisen  within  England  itself  upon  the  Norman  con- 
quest, and  before  that  event,  upon  the  union  of  the  Anglo-Saxon  monarchies  under 
Egbert,  A  D.  827.  The  local  customs  of  England,  such  as  gavel-kind,  were  nothing 
else  than  the  remaining  common  law  of  certain  districts  formerly  constituting  inde- 
pendent sovereignties. 

'  See  Atty.  Gen.  v.  Stewart,  2  Merivale,  159.     Story  Comm.  §  151. 


118  THEORY  OF  THE  COLONISTS. 

legislature  in  the  mother  country.  But  in  conquered  or  ceded 
countries  that  have  already  laws  of  their  own,  the  king  may  in- 
deed alter  and  change  the  laws ;  but,  till  he  does  actually  change 
them,  the  ancient  laws  of  the  country  remain,  unless  such  as  are 
against  the  laws  of  God,  as  in  the  case  of  an  infidel  country,  (7 
Rep.  17.  Calvin's  case.  Dutton  v.  Howell,  Shower's  Pari,  cases, 
31.)  Our  American  plantations  are  principally  of  this  latter  sort, 
being  obtained  in  the  last  century,  either  by  right  of  conquest 
and  driving  out  the  natives  (with  what  natural  justice  I  shall 
not  at  present  inquire)  or  by  treaties.  And  therefore  the  common 
law  of  England,  as  such,  has  no  allowance  or  authority  there ; 
they  being  no  part  of  the  mother  country,  but  distinct,  though 
dependent,  dominions.  They  are  subject,  however,  to  the  con- 
trol of  the  parliament,  though  (like  Ireland,  Man  and  the  rest) 
not  bound  by  any  Acts  of  parliament  unless  particularly  named." 
§  126.  Tlie  theory  generally  maintained  by  the  crown  law- 
yers, anteriorly  to  the  American  Revolution,  seems  to  have 
been,  that  the  common  law,  in  being  the  law  of  the  rights  of 
Englishmen,  was  so,  only  so  far  as  it  was  the  territorial  law  of 
Great  Britain  ;  that  it  determined  the  rights  of  British  subjects 
only  while  in  England,  and  that  when  in  any  colony,  or  other 
particular  district  forming  part  of  the  Empire,  their  rights 
would  be  determined  entirely  by  a  law  having  a  like  territorial 
extent  in  and  for  that  colony  or  district :  a  law  which  could 
originate  solely  in  the  will  of  the  king,  or  of  the  king  and  parlia- 
ment, legislating  for  that  colony  or  district,  as  a  several  territo- 
rial domain.'  This  theory,  and  the  inferences  which  those  ad- 
vocates of  the  ro3''al  prerogative  who  admitted  Blackstone's  al- 
ternatives, based  upon  his  assumption  that  the  American  colo- 
nies were  "  principally  of  the  latter  sort,"  were  not  only  con- 
stantly controverted  by  the  colonists  themselves,  but  by  many 
English  publicists  of  the  time."     And  it  must  now  be  taken  as  a 

'  Cliitty  on  Prerogatives,  c.  iii.  Chalmers's  Hist,  of  Revolt  of  Am.  Col.  vol.  i.  p. 
302.  1  Salk.  666.  American  Tracts,  vol.  i. ;  Dummer's  Defence  of  the  N.  E.  Char- 
ters, p.  49, — "And  to  complete  the  oppres.^ion,  when  they  upon  their  trial  claimed  the 
privileges  of  Englishmen,  they  were  scoffingly  told,  these  things  would  not  follow  them 
to  the  ends  of  the  earth  :  unnatural  insult,  &c." 

"  Reeves's  Hist,  of  Law  of  Shipping,  p.  138.  1  Chalmers's  Opinions,  pp.  23,  195, 
220.  2.  Chalm.  Op.,  p.  202,  209,  240.  Dr.  Richard  Price's  Observations  on  Civil 
Lib.  &c.,  pub.  1766. 


CHARTERED   RIGHTS.  119 

settled  axiom  of  American  law,  that  the  territory  of  the  colonies 
■was  claimed  by  right  of  occupancy,  or  by  finding  it  "desert  and 
uncultivated  ;"  and  that  the  common  law  of  England  first  ob- 
tained in  that  part  of  the  Empire  as  a  law  personal  to  the  Eng- 
lish-born colonist.' 

Besides  the  eflfect  of  this  principle,  all  the  charters,  with  the 
single  exception  of  that  of  Pennsylvania,'  declared  that  the  colo- 
nists and  their  childi-en  should  have  all  the  rights  of  subjects 
born  in  England.' 

§  127.  But,  it  being  supposed  that  the  common  law  of  Eng- 
land was  thus  transplanted  with  the  British  colonist  to  America, 
and  was  there  operative  in  determining  his  rights  as  a  private 
person,  another  question,  or  one  which  was  the  same  question 
— ^i-egarded  as  a  matter  of  public  law — arose, — upon  what  politi- 
cal authority  would  the  continuance  of  that  law,  as  the  territo- 
rial law  of  that  colony,  thereafter  depend  ? 

According  to  the  views  of  the  English  lawyers,  at  the  time 
of  the  settlement  of  the  colonies,  the  patent  gave  a  title  to  the 
soil,  but  prerogatives  of  government  could  only  be  exercised 
under  a  charter  from  the  crown.*  With  the  exception  of  the 
first  charter  of  Virginia,  of  1606,'  the  royal  charters,  in  consti- 
tuting the  colonial  governments,  provided  that  the  local  legisla- 
tion should  not  be  contrary  to  the  laws  of  England,  or  that  it 
should  be  conformable  as  near  as  might  be  to  the  laws  of 
England ;  and  besides  this,  the  charters,  as  before  noticed,  guar- 
anteed to  the  English  colonists  and  their  descendants  the  rights 
of  subjects  born  in  England." 

'  Story's  Comm.  §§  152-7,  and  the  nnmerous  authorities  cited  there  ;  and  for  the 
modern  English  doctrine,  Chitty  on  Prerogatives,  p.  30.  Chitty's  Commer.  Law,  voL 
L  p.  639.     Rex  v.  Brampton,  1 8  East's  R.  288. 

Mr.  Jefferson,  however,  always  derided  this  principle  of  the  personal  extent  of  the 
common  law.  See  Jefferson's  Correspondence,  vol.  iv,  p.  178.  Jefferson,  being  of  the 
a  priori  or  "  law  of  nature "  school,  could  be  at  no  loss  for  a  basis  upon  which  to 
rest  such  rules  of  action  as  he  might  approve  of. 

»  Story's  Comm.  §  122. 

'  See  post,  ch.  vi.     Story's  Comm.  B.  I.  ch.  16,  17. 

*  1  Banc.  321.     1  Hild.  175. 

*  1  Hen.  Stat.  57.  1  Banc.  122,  136.  The  code  of  regiilations  made  by  the  king, 
however,  required  that  the  local  ordinances  should  conform  to  the  laws  of  England,  and 
should  not  touch  life  or  limb.     Story's  Comm.  §  44. 

*  In  reference  to  the  first  cliarter  of  Virginia,  1606,  Bancroft  says,  vol.  i.  121 :  "To 
the  emigrants  it  was  promised  that  they  and  their  children  should  continue  to  be  Eng- 
lishmen— a  concession  which  secured  them  rights  on  returning  to  England,  but  offered 
no  barrier  against  colonial  injustice."     In  this  view  the  guarantee  of  the  rights  p<j8- 


120  BA6I8   OF   LEGISLATION. 

Tliere  were  some  very  material  differences  in  the  political 
constitution  of  these  colonial  governments  in  being  respectively 
either  chartered,  proprietary,  or  provincial.'  This  difference  in 
the  investiture  of  political  rights  naturally  occasioned,  in  the 
earlier  period  of  their  settlement,  important  differences  between 
the  colonies  in  respect  to  the  recognition  of  private  liberties,  or 
the  foundation  of  the  rights  of  private  individuals  under  public 
law. 

§  128.  Tlie  New  England  colonial  governments  were,  how- 
ever, also  based  on  an  extraordinary  foundation,  having,  within 
their  several  jurisdictions  at  least,  a  recognized  political  exist- 
ence and  validity,  in  the  voluntary  compact  of  those  in  each  who 
agreed  in  constituting  themselves  the  original  "  freemen,"  and 
in  their  individual  acknowledgment  of  the  power  of  the  whole 
body  of  freemen "  to  legislate  as  a  political  state  by  the  voice  of 
the  majority, 

Tlie  fii'st  settlers  of  Plymouth  colony  in  Massachusetts  en- 
tered into  a  compact  for  government  before  the  landing,  by 
which  they  combined  themselves  together  into  a  civil  state  or 
body  politic,  mutually  promising  "  all  due  submission  and  obe- 
dience" to  "such  just  and  equal  laws  and  ordinances,  acts,  con- 
Btitutions  and  officers  from  time  to  time  as  shall  be  thought  most 
meet  and  convenient  for  the  general  good  of  the  colony  ; "  *  and 
under  this  voluntary  association  they  afterwards  gradually  as- 
sumed, M'ithout  any  charter  from  the  crown,  all  powers  of  gov- 
ernment for  local  purposes.*    Tlie  governments  of  Rliode  Island, 

sessed  by  every  Englishman  in  England  by  the  law  of  the  land  did  not  operate  ns  a  law 
in  the  colony.  But  this  is  not  the  view  of  the  effect  of  such  a  guarantee  which  has 
been  taken  by  most  writers  on  this  subject.  It  is  generally  considered  to  have  had  the 
same  effect  as  the  provision  afteirwards  inserted  in  the  charters,  that  the  local  legisla- 
tion should  not  be  contrary  to  the  laws  of  England.  The  local  government,  under  tlie 
second  Virginia  charter  and  the  extraordinary  grant  of  power  to  the  council  of  the 
company  in  Eni^land,  therein  contained  (sections  13,  23),  seemed  to  have  attributed  no 
effect  to  tlie  guarantee  of  rights  in  the  individual  colonists.  "  A  code  of  martial  law 
was  at  one  period  the  law  of  Virginia.  Servitude  for  a  limited  period  was  the  com- 
mon penalty  aimexed  to  trifling  offences."     1  Banc.  151,  152. 

'  1  Bla.  Comm.,  p.  108.  Chitty  :  Commer.  Law,  i.  p.  643.  Chitty  on  Preroga- 
tives, p.  30.     Curtis's  Hist,  of  the  Constitution,  i.  pp.  4,  5. 

'  The  fi-cenien  being,  however,  only  a  limited  number  of  the  inhabitants,  and  their 
acknoidedgment,  even  if  morally  and  politically  justifiable,  being  in  some  sort  a  usurpa- 
tion, that  is,  having  no  original  foundation  in  public  law. 

'  1  Chalmers's  Annals,  p.  102.     1  Banc.  309. 

*  Story's  Comm.  §§  65,  5G.     1  Banc.  pp.  320-323.     2  Hutch.  Hist,,  App.  i. 


NEW   ENGLAND   GOVERNMENTS.  M^ 

Hartford  and  New  Haven,  were  first  formed  under  voluntary 
compacts. ' 

The  authorities  of  the  colony  of  Massachusetts  Bay,  though 
claiming  to  act  under  the  charter  of  government  of  1628  to  the 
freemen  and  associates  or  corporators  of  the  Company  organized 
in  England,  which  contained  provisions  guaranteeing  common 
law  rights  to  the  colonists  and  limiting  the  legislative  power  of 
that  Company,  acted  from  the  outset  under  a  view  of  their 
independence  of  the  imperial  authority,  which  difiered  essentially 
from  the  political  doctrines  entertained  in  the  more  southern  col- 
onies, whose  constitution  had  been  more  definitely  settled  at  their 
foundation.  In  Massachusetts,  the  original  emigrants  and  their 
immediate  successors  regarded  themselves  as  founding  a  state 
on  principles  of  natural  ethics  and  revealed  religion,  indepen- 
dently of  any  positive  law  derived  from  a  pre-existing  political  au- 
thority. ^  In  this  original  charter  there  was  no  provision  se- 
curing to  the  actual  colonists,  as  inhabitants  who  might  or  might 
not  be  connected  with  the  corporate  body  in  England,  any  share 
in  the  local  government ;  ^  and  the  elective  franchise,  or  the 
capacity  of  being  a  freeman  of  the  colony,  even  after  the  trans- 
fer of  the  corporate  government  from  England  to  America  in 
1629,  was  made  by  the  grantees  of  the  charter,  or  the  so  called 
"  freemen  "  and  associates  of  the  Company,  to  depend  on  church 
membership.*  Their  civil  polity  being  in  a  great  degree  iden- 
tified with  their  ecclesiastical  constitutions,  the  scriptures  of  the 
Old  and  New  Testaments  were  for  a  time  regarded  as  part  of 
their  civil  law  as  well  as  the  highest  rule  of  moral  duty. '     The 

*  1  Banc.  392,  402.  1  Chalmers's  Annals,  269.  1  Trnmbull's  Hist.,  27.  1  Pit- 
kin's Hist.,  42-47. 

'  Reeves's  Hist.  Law  of  Shipping,  p.  138.  Story's  Comm.,  §  67.  1  Banc.  432.  1 
Hutch.  Hist.  p.  251,  2d  ed.  It  will  be  remembered  that  the  political  institution  of  all 
the  other  New  England  colonies  was,  in  a  certain  degree,  derived  from  or  based  upon  the 
pre-existence  of  the  Massachusetts  colony.     See  post,  ch.  vi. 

'  1  Hild.  180.     Story's  Comm.  §  63. 

*  Ancient  Charters  &c.,  p.  117.  1  Hutch.  Hist.  p.  26,  83.,  Note.  1  Holmes's  Annals, 
261.  1  Banc.  360.  "  The  servant,  the  bondman,  might  be  a  member  of  the  church  and 
therefore  a  freeman  of  the  Company."  This  is  very  unlikely;  it  was  probably  assumed 
that  the  elector  should  also  be  a  person  sui  juris ;  women  and  minors,  if  members  ol 
churches,  were  not  therefore  electors. 

=  1  Mass.  Records,  p.  174.  2  Hutchinson's  Hist.  p.  3.  "From  1640  to  1660  they 
approached  very  near  to  an  independent  commonwealth,  and  during  this  period  com- 
pleted a  system  of  laws  and  govemment,  the  plan  of  which  they  had  before  laid  and 


1^  QUESTION   OF   POWEK. 

restriction  on  tlie  local  government  by  the  law  of  England  was 
from  time  to  time  acknowledged  by  the  authorities.  As  in  the 
declaration  of  the  General  Court  in  1661,  entitled — "  Concerning 
our  Liberties  ;  "  Art.  6,  "  The  Governor,  Deputy  Governor,  As- 
sistants and  Representatives  or  Deputies  have  full  power,  &c. 
ecclesiastical  and  civil,  without  appeal ;  except  laws  repugnant 
to  the  laws  of  England."  ^  But,  mitil  the  remodelling  of  the 
colonial  government  of  Massachusetts  under  the  charter  of  Wil- 
liam and  Mary,  1691,  constituting  a  provincial  government  su- 
perseding the  two  governments  of  Plymouth  colony  and  Massa- 
chusetts Bay,  the  General  Court,  constituted  either  of  the  "  free- 
men" in  person,  or  their  elected  representatives,  in  exerting 
powers  which  were  contested  as  derogatory  to  the  supremacy  of 
the  king  and  parliament,  or  contrary  to  the  public  law  of  the 
Empire,  sometimes  exerted  them  in  a  manner  derogatory  of  com 
mon  law  rights  in  their  fellow-subjects — rights  existing  under  the 
guaranteed  private  law  of  the  colony.'  For  a  long  period  after 
their  first  settlement  the  New  England  colonies  seem  to  have 

begun  to  execute.  In  this  they  departed  from  their  charter,  and  instead  of  making  the 
laws  of  England  the  groundwork  of  their  code  they  preferred  the  laws  of  Moses." 

■  1  Hutch.  Hist.  app.  xiii. 

»  1  Hutch.  Hist.  p.  82,  94,  and  2  do.  p.  12.  Protest  of  Maverick  and  Child  in  1646. 
1  Hutch.  Hist.  p.  145.  Answer  of  Council  for  the  N.  E.  colonies  to  the  Privy  Council 
on  Morton's  petition,  1634.  1  Hutch.  Hist.  251,  2d.  ed.  230,  3d.  ed. ;  his  view  of  the 
Massachusetts  theory  of  government.  2  Chalmers's  Opinions,  p.  31.  1  Hild.  183,  193, 
218,  247,  253,  255,  270,  279,  318. 

Case  of  the  Brownes  (1629),  see  Chalmers's  Political  Ann.  p.  146.  Young's  Chron- 
icles of  Mass.  p.  287,  note.      1  Grahame's  Hist.  p.  217. 

In  Connecticut  revised  laws  of  1821,  Title  94,  Societies. — "  Au  act  relating  to  religions 
societies  and  congregations,"  a  note  is  appended,  giving  an  interesting  summary  of  the 
legislation  of  the  colony  and  State  bearing  on  this  topic.  It  is  there  remarked  :  "  The 
object  of  our  ancestors  in  emigrating  to  the  country,  was  to  enjoy  their  religion,  not 
only  free  from  persecution,  but  without  interruption  from  Cliristians  of  different  sen- 
timents. They  were  desirous  of  maintaining  a  uniformity  of  doctrine  and  of  worship. 
The  true  principles  of  religious  liberty  were  not  then  known  in  any  Christian  country, 
and  toleration  was  not  the  virtue  of  the  age.  Accordingly,  on  their  arrival  they  formed 
an  ecclesiastical  constitution,"  &c.  &c.  The  point  to  be  noticed  here  is  not  that 
they  had  wrong  ideas  about  the  rights  of  conscience  and  religious  worship,  (which  may 
or  may  not  be  true,)  but  that  thej'  usurped  a  prerogative  of  sovereignty  over  their  fellow- 
eubjects.  It  may  be  admitted  that  the  enforcement  of  the  true  creed  and  form  of  wor- 
ship is  the  duty  of  the  state,  and  that  the  creed  and  form  of  worship  adopted  by  the 
colonists  was  the  true  one.  Still  the  question  is — had  they  the  legal  right,  by  public  law, 
to  exclude  from  their  limits  or  otherwise  punish  those  of  their  fellow-subjects  who,  in 
England,  might  have  equally  differed  from  them  and  yet  have  been  unmolested  by  the 
law  of  the  land  ? 

For  other  recent  defences  of  the  New  England  governments,  see  North  Am.  Quart. 
Rev.,  Oct.  1851,  Oct.  1853,  and  among  the  annual  addresses  before  the  New  England 
Society  in  N.  Y.  the  discourse  of  J.  P.  Hall,  Esq.,  Dec.  22,  1847. 


BELLS   OF   RIGHTS. 

acknowledged  no  basis  for  the  liberties  of  the  individual  in- 
habitant  beyond  the  will  of  the  local  power.  And,  whether  they 
were,  severally,  at  particular  periods  oligarchical,*  or  pure  democ- 
racies, the  government  representing  the  will  of  the  majority  of 
the  electors  claimed  to  be  the  possessor  of  a  sovereign  power  in 
matters  of  private  law. 

§  129.  From  time  to  time  declarations  were  made  by  the  dif- 
ferent colonial  governments,  with  greater  or  less  solemnity,  in 
form  nearly  approaching  Magna  Charta  and  the  English  bills  of 
rights,  in  which  "  the  law  of  the  land  "  was  referred  as  the  safe- 
guard of  the  rights  and  liberties  of  the  free  inhabitants.  But  these 
appear  to  have  been  put  forth,  like  their  great  originals  at  the 
time  of  their  promulgation,  rather  as  guarantees  against  viola- 
tions of  the  laws  of  the  land  by  arbitrary  executive  power,  than 
as  appeals  to  common  law  and  those  charters  and  bills  of  rights 
as  of  constant  effect  against  the  supremacy  of  the  legislature.* 
They  were  probably  meant  for  protests  against  the  arbitrary  action 
of  the  imperial  government,  whether  legislative  or  executive, 
rather  than  pledges  against  the  abuse  of  that  power  which  was 
deemed  to  be  vested  in  the  local  government.  In  some  instances/ 
where  the  common  law  of  England  was  recognized  by  the  colo- 
nial authority  as  the  foundation  of  the  rights  of  private  persons, 
the  power  of  sovereignty  to  alter  that  law  was  at  the  same  time 
implied  to  be  resident  in  the  provincial  government ;  as  by  the 
declaration  in  the  Plymouth  laws,  published  1636,  in  the  first 
article — "  we  the  associates  of  the  colony  of  New  Plymouth, 
coming  hither  as  freeborn  subjects  of  the  kingdom  of  England, 
endowed  with  all  and  singular  the  privileges  belonging  to  such, 
&c." — and  in  the  fourth  article — "  that  no  person  in  this  gov- 
ernment shall  suffer  or  be  indamaged  in  respect  to  life,  limb, 
liberty,  good  name  or  estate,  under  color  of  law  or  countenance 
of  authority,  but  by  virtue  of  some  express  law  of  the  General 
Court  of  this  colony,  or  the  good  and  equitable  laws  of  our  na- 
tion, suitable  for  us  in  matters  which  are  of  a  civil  nature,  (as  by 

-  Comp.  Washburn's  Judicial  Hist,  of  Mass.  Ch.  1.  Lechford's  Plain  Dealing,  writ- 
ten about  1640  (see  Mass.  Hist.  Coll.  3d  series,  vol.  iii.)  1  Hutch.  Hist.  p.  94,  note.  1 
Banc.  431-435.     3  Banc.  15-19.     1  Hild.  233. 

''  Compare  Report  of  the  House  of  Delegates,  Virginia,  1799,  on  the  Alien  and 
Sedition  laws,  Randolph's  Ed.  p.  220. 


124  COMMON   LAW   RIGHTS. 

the  court  here  hath  been  accustomed,)  wherein  we  have  no  par- 
ticular law  of  our  own,"  &c.  And  very  similar  in  effect  to  this 
was  the  act  of  the  legislature  of  South  Carolina  in  1712,  recog- 
nizing the  binding  force  of  the  common  law,  as  moditied  by 
certain  specified  statutes  in  amendment  of  it,  "  but  only  when 
not  inconsistent  with  the  particular  constitutions,  customs  and 
laws  of  this  province."  * 

§  130.  A  power  in  the  common  law,  operating  as  a  personal 
law  to  limit  the  extent  of  colonial  legislation  in  matters  of  pri- 
vate law  was,  however,  in  the  colonics  themselves,  constantly 
asserted  by  those  who  believed  their  native  rights  infringed  un- 
der colonial  laws,  whether  the  body  promulgating  those  laws 
existed  on  the  democratic  basis,  or  as  the  organ  of  a  provincial 
praetor,  or  of  an  individual  proprietor.  In  Massachusetts  the 
aristocratic  and  theocratic  parties  were  compelled  to  abandon 
their  view  of  the  foundation  of  their  civil  state  by  the  interven- 
tion of  the  royal  power  and  the  influx  of  immigrants  entertain- 
ing difierent  opinions  in  matters  of  religion  or  of  ecclesiastical 
polity.'^  And  in  all  the  colonies  the  equality  of  all  free  subjects 
of  the  empire,  in  respect  to  the  rights  of  civil  citizenship  under 
the  local  government,  became  established.  Even  in  the  prov- 
inces acquired  by  conquest,  the  personal  extent  of  the  common 
law  was  constantly  claimed  by  the  English  inhabitants.'  Tlie 
Duke  of  York's  patent  or  charter  of  the  provinces  acquired  from 
Holland,  empowered  him  and  his  assigns  to  govern  the  inhab- 
itants by  such  ordinances  as  he  and  his  assigns  should  establish  ; 
but  the  assembly  of  East  Jersey  in  1680,  told  the  governor  that 
it  was  not  on  the  king's  letters  patent  to  the  Duke  of  York,  but 

'  2  Hild.  275,  and  see  post,  Ch.  vi.  Laws  of  S.  C.  Knickerbocker's  Hist,  of  New  York, 
B.  TV.  c.  9.  "  In  fact  the  Merrylanders  and  their  cousins,  the  Virginians,  were  represented 
to  William  Kieft  as  ofifsets  from  the  same  original  stock  as  his  bitter  enemies  the  Yano- 
kies,  or  Yankee  tribes  of  the  East :  having  both  come  over  to  this  country  for  the  liberty 
of  conscience,  or  in  other  words,  to  live  as  they  pleased :  the  Yankees  taking  to  pray- 
ing and  money-making  and  converting  Quakers;  and  the  Southerners  to  horse-racing 
and  cock-fighting  and  breeding  negroes." 

"  See  the  King's  letter  of  June  28,  1662,  in  Mass.  Records,  Vol.  iv.,  part  2,  pp. 
164,  167,  and  resolutions  of  the  General  Court  modifying  the  requisites  for  the  elec- 
tive franchise,  in  the  same,  pp.  117,  562;  also  in  Charters,  &c.,  p.  117,  and  charter 
of  1691,  in  the  same,  p.  28.     Story's  Comm.  §  71.     1  Banc.  431-435. 

^  In  2  Canadian  Freeholder,  pp.  168,  172,  it  is  argued  that  New  York  was  not  con- 
sidered by  the  king  as  a  conquered  country,  but  as  a  part  of  the  more  ancient  colony  of 
New  England.     And  see  1  Smith's  Hist.,  N.  Y.,  App.,  c.  6. 


THE   PUBLIC   LAW.  125 

on  ''  the  great  charter  of  England"  that  they  relied  as  "  the  only 
rale,  privilege  and  joint  safety  of  every  freeborn  Englishman."  » 

The  colonists  claimed  that  the  common  law,  thus  having  a 
personal  extent,  fixed  their  social  and  civil  rights  as  much  as 
those  of  British  subjects  in  England,  and  that  this  was  a  protec- 
tion against  both  the  colonial  and  the  imperial  legislative  power 
when  acting  separately ;  in  short,  that  their  rights  known  as 
common  law  rights,  or  the  rights  of  the  free  subject  of  British 
birth,  could  not  be  divested  except  by  a  national  law — national 
because  applying  to  the  British  subject  in  England  as  well  as  in 
the  colony,  and  that  in  the  making  of  such  law  their  several 
will  was  entitled  to  be  represented,  as  an  element  of  the  national 
will,  in  virtue  of  the  common  law  regarded  as  the  public  law  of 
the  empire,  or  the  law  of  political  constitution. « 

During  the  cobnial  period  in  the  eighteenth  century,  the  ex- 
tent of  the  common  law  of  England  in  determining  the  rights 
of  the  British-born  colonists  and  their  descendants,  in  America, 
became  generally  recognized  in  matters  of  private  law.  The 
question  of  its  operation  in  the  public  law  of  the  empire,  or  in 
determining  the  public  rights  of  the  colonists,  continued  to  be 
the  subject  of  controversy  between  them  and  the  parent  coun- 
try, terminated  only  by  the  revolution.  For  it  was  by  resting 
on  the  common  law,  as  the  public  law  of  the  nation,  that  the 
colonists  claimed  to  be  governed  by  laws  in  the  making  of  which 

'  Learning  &  Spicer's  Col.  pp.  681,  682.     2  Hild.  p.  60. 

^  An  Historical  Discourse  of  the  Uniformity  of  the  Government  of  England,  by  Na- 
thaniel Bacon,  of  Grais'  Inne,  (1647)  p.  55.  "The  next  and  most  considerable  degree 
of  all  the  people  is  that  of  the  Free  men,  anciently  called  Frilingi,  or  free  born,  or  such 
as  are  borne  free  from  all  yoke  of  power,  and  from  all  Law  of  compulsion  other  than 
what  is  made  by  bis  voluntary  consent ;  for  all  freemen  have  votes  in  the  making  and 
executing  of  the  generall  Laws  of  the  Kingdome,"  &c. 

N.  Y.  Evening  Express,  Dec.  23,  1843.  Hoa  Rufus  Choate's  Oration  before  the 
New  England  Society  in  New  York  :  speaking  of  the  residence  of  certain  English  Puri- 
tans in  Geneva,  Switzerland,  IS.'jS-ISoS,  and  its  influence  upon  them, — "There,  was  a 
state  without  a  king  or  nobles :  there,  was  a  church  without  a  bishop  :  (tremendous 
applause,)  there,  was  a  people  governed  by  laws  of  their  own  making  and  by  rulers  of 
their  own  choosing."  If  the  Pilgrim  fathers  found  in  Geneva  the  model  of  their  infant 
state,  it  would  be  a  curious  subject  of  inquiry,  whether  Geneva  was  at  that  time  an 
oligarchic  or  a  democratic  republic,  according  to  the  modern  definitions  (see  London 
Cycl.  voc.  Geneva).  But  in  whatever  the  Massachusetts  colonists  may  have  found  their 
beau-ideal,  the  civil  liberty  of  the  nation  which  calls  itself  the  People  of  the  United 
States  is  in  a  great  degree  attributable  to  the  fact  that  their  state  was  not  "  without  a 
king;"  and  if  religious  liberty  has  successfully  been  maintained  in  the  States  that  with 
just  pride  venerate  them  as  the  founders,  it  might  better  be  said — it  was  not  because 
there  was  no  bishop,  but  because  bishops  were  so  many. 


126  BOUKCE   OF   LAWS. 

they  had  themselves  shared  by  their  representatives ;  and,  be- 
cause unrepresented  in  parliament,  they  denied  its  power  to  leg- 
islate for  them  in  local  matters.' 

§  131.  But  the  power  of  sovereignty  to  alter  all  private  law 
must  have  existed  somewhere,  so  far  as  such  a  power  can  exist ; 
and,  as  to  the  colonies,  it  was  to  be  found,  according  to  either 
the  tory  or  the  liberal  theory — in  the  parliament  of  England, 
the  king  and  the  colonial  legislature ;  according  to  the  nature 
of  the  subject,  either  severally,  or  all  united.  The  limits  be- 
tween these  co-existing  sources  of  law  were  never  systematically 
defined,  and  naturally  received  a  variety  of  construction.  But, 
whatever  may  have  been  the  true  legal  limits  of  the  power  of 
parliament  in  reference  to  the  colonies,  sipce  their  international 
and  commercial  policy  still  continued,  of  necessity,  to  be  con- 
nected with  that  of  England,  the  statutes  of  parliament  affect- 
ing such  relations  must  have  been  indisputably  operative  during 
the  colonial  period." 

The  legislative  declarations  of  the  colonial  governments, 
in  the  nature  of  bills  of  rights,  even  if  not  intended  only  as 
bulwarks  against  arbitrary  executive  power,  seem  to  be  founded 
on  the  theory  that  a  parliament,  or  the  constituted  legislature, 
is  the  depositary  of  the  sum  of  sovereign  power,  and  the  source 
and  ultimate  arbiter  of  all  law;'  and  this,  whether  the  colonial 
legislature  was  considered  as  formed  by  royal  charter,  or  by  the 
voluntary  consent  of  the  freemen  of  the  colony.* 

It  has  sometimes  been  asserted  by  English  jurists  that  the 
power  of  the  British  parliament  is  controlled,  to  some  degree,  by 
common  law  ;  which  control  might  be  exercised  by  the  judges, 
in  declaring  its  acts  void ;  and  that  under  the  term  common  law 

-  1  Banc.  442.  Duponceau  on  Jurisdiction,  Pref.  ix.  Dechiration  of  the  Congress 
of  the  nine  Colonies,  1765 :— Story's  Comm.,  §  190.  1  Pitkin's  Hist.  235,  286,  340, 
344. 

'  Smith's  Wealth  of  Nations,  B.  iv.  c.  7.  1  Chalmers's  Opinions,  p.  201.  Chitty 
on  Prerogative,  c.  iii.  Stokes :  Const,  of  the  British  Col.  Declaration  of  Rights  of  the 
Continental  Congress,  1774,  Resol.  4.  Story's  Comm.  §  194,  note.  Virginia  Report  of 
1799,  (alien  and  sedition  laws,)  Randolphs  Ed.  1850,  p.  212.  Curtis's  Hist,  of  the 
Constitution,  i.,  p.  20,  21,  .ind  generally  on  these  points.  Story's  Comm.  B.  i.,  c.  16,  17. 

•"*  This  is  the  doctrine  of  1  Chalmers's  Opinions,  p.  1. 

*  Unless  in  Connecticut  and  Rhode  Island,  during  the  early  periods  of  their  politi- 
cal existence,  the  body  of  the  electors  or  "freemen,"  may  be  taken  to  have  been  the 
actual  government  and  possecsor  of  political  power.  Compare  Bancroft's  Hist  voL  i., 
for  the  political  history  of  these  colonies. 


LEGISLATIVE   POWEE.  127 

natural  right  or  reason  is  included,  as  a  rule  of  distinct  existence, 
capable  of  being  separately  recognized  by  the  tribunal.  Thus  Sir 
Henry  Finch,  in  a  Treatise  on  the  law  of  England,  pp.  74-76,  de- 
clares, that  positive  statutes  contrary  to  common  law,  reason  and 
nature  are  void ;  and  in  Bonham's  case,  8  Coke,  118,  it  is  said,  "  and 
it  appears  in  our  books,  that  in  many  cases  common  law  doth  con- 
trol acts  of  parliament ;  for  when  an  act  is  against  common  right 
and  reason,  or  repugnant,  or  impossible  to  be  performed,  the  com- 
mon law  will  control  it  and  adjudge  such  acts  to  be  void ;  "  citing 
some  of  the  older  cases,  wherein  common  law  rules  of  the  most 
constant  application  have  been  used  to  limit  the  apparent  effect 
of  Acts  of  parliament.  And  by  Hobart,  C.  J.  it  is  said  that 
"  an  act  of  Parliament  made  against  natural  equity,  as  to  make 
a  man  judge  in  his  own  cause,  is  void  in  itself,  for  jura  naturae 
sunt  immutabilia,  and  they  are  leges  legum."  (Day  v.  Savage, 
Hobart's  K.  87.)  Holt,  C.  J.  in  The  city  of  London  v.  Wood,  12 
Modern  R.  688,  says  that  parliament  can  do  no  wrong ;  though 
it  may  do  several  things  that  look  pretty  odd  ;  that  it  may  dis- 
charge a  man  from  his  allegiance,  but  cannot  make  one  that  lives 
under  a  government  both  judge  and  party ;  that  it  cannot  make 
adultery  lawful,  though  it  may  annul  the  marriage  of  A  with  B 
and  make  her  the  wife  of  C."  But  Coke,  in  4  Institutes,  36,  says 
of  the  power  of  parliament,  that  "  it  is  transcendent  and  absolute, 
and  that  it  cannot  be  confined,  either  for  causes  or  persons,  within 
any  bounds."  And  Blackstone,  in  1  Comm.  p.  161,  says  that  "  it 
can  do  everything  that  is  not  naturally  impossible,"  that  "it 
hath  sovereign  and  uncontrollable  authority  in  the  making,  con- 
firming, enlarging,  restraining,  abrogating,  repealing,  reviving 
and  expounding  of  laws,  concerning  matters  of  all  possible  de- 
nominations, ecclesiastical  or  temporal,  civil,  military,  maritime 
or  criminal ;  this  being  the  place  where  that  absolute  despotic 
power,  which  in  all  governments  must  reside  somewhere,  is  in- 
trusted by  the  constitution  of  these  kingdoms."  • 

With  regard  to  laws  impossible  to  be  executed  they  must  be 
of  necessity,  legally  as  well  as  naturally,  void,  since  no  judicial 

'  And  compare  Bacon's  Abridg  Statutes^  A.  Dwarris  on  Statutes,  pp.  642-G47. 
The  passages  in  Bracton,  Fleta  and  the  Mirrour  which  speak  of  the  law  of  nature  aa 
immutable  by  the  legislative  power  of  the  state,  are  only  repetitions  of  the  language  of 
Justinian's  Institutes,  and  must  receive  the  same  exposition.     See  the  next  chapter. 


128  LEGISLATIVE   POWER. 

or  executive  power  can  tjive  them  an  effect  contrary  to  their 
own  nature.  Blackstone  says,  Comm.  vol,  1,  p.  91:  "Acts  of 
parliament  that  are  impossible  to  be  performed  are  of  no  validi- 
ty ;  and  if  there  arise  out  of  them  collaterally  any  absurd  conse- 
quences, manifestly  contradictory  to  common  reason,  they  are, 
with  regard  to  those  collateral  consequences,  void.  I  lay  down 
the  rule  with  these  restrictions  ;  though  I  know  it  is  generally 
laid  down  more  largely,  that  acts  of  parliament  contrary  to  rea- 
son are  void.  But  if  the  parliament  will  positively  enact  a 
thing  to  be  done  which  is  unreasonable,  1  know  no  power  in  the 
ordinary  forms  of  the  constitution  that  is  vested  with  authority 
to  control  it :  and  the  example^  usually  alleged  in  support  of 
this  sense  of  the  rule  do  none  of  them  prove,  that  where  the 
main  object  of  a  statute  is  unreasonable,  the  judges  are  at  lib- 
erty to  reject  it :  for  that  were  to  set  the  judicial  power  above 
that  of  the  legislative,  which  would  be  subversive  of  all  gov- 
ernment." Mr.  Christian's  note  to  this  passage  concludes  as  fol- 
lows : — •"  but  where  the  signification  of  a  statute  is  manifest,  no 
authority  less  than  that  of  parliament  can  restrain  its  opera- 
tion." The  conclusion  of  Sir  Matthew  Hale  respecting  the  power 
of  parliament  is  eqiial  to  a  definition  of  the  supreme  legislative 
and  judicial  power  of  every  state  or  nation  : — "  this  being  the 
highest  and  greatest  court  over  which  none  other  can  have  ju- 
risdiction, if  by  any  means  a  misgovernment  should  any  way 
fall  upon  it,  the  subjects  of  this  kingdom  are  left  without  all 
manner  of  remedy."  '  From  these  various  authorities  it  may  be 
inferred  to  be  the  theory  of  the  public  municipal  (national)  law 
of  the  British  Empire,'  that  the  entire  sovereignty  of  the  nation 
is  vested,  or  as  may  be  said,  has  primordial  existence  (by  right 
above  law),  in  the  legislating  body  or  bodies — king,  lords  or 
commons,  or  the  three  united ;  including  under  this  designation 
all  colonial  or  local  legislative  bodies.     All  that  sovereign  power 

'  The  statute  Confirmatio  Chartarum,  25  Edw.  1.  c.  1.  declares  that  the  great  charter 
shall  be  held  for  common  law  ;  and  the  statute  of  Westminster,  42  Edw.  3,  c.  1 :  "  It  is 
asserted  and  accorded  that  the  great  charter  and  the  charter  of  the  forest  be  holden 
and  kept  in  all  points,  and  if  any  statute  be  made  to  the  contrary,  that  shall  be  holden 
for  none."  See  Co.  Lit.  Proeme  to  2d.  Inst.  An  Act  of  parliament  is  thus  the  autho- 
rity for  the  restriction  of  parliament  by  common  law. 

*  The  question  of  the  limitation  of  the  legislative  function  of  the  English  govern- 
ment, under  the  British  constitution,  is  a  question  of  pulilic  mvmicipal  (national)  law, 


LAW    AND   LIBERTY. 

in  any  nation  may  do,  this  organized  body  or  incorporated  gov- 
ernment may  do. 

§  132.  But  whatever  may  have  been  the  extent  of  the  power 
residing  in  tlie  British  parliament  alone,  or  in  it  together  with 
the  provincial  governments,  to  determine  the  laws  which  should 
prevail  territorially  in  the  American  colonies,  the  common  law 
of  England  was  always  regarded  in  each  of  the  colonies,  for 
many  years  anterior  to  the  revolution,  as  a  law  of  national  as 
well  as  local  extent,  determining  the  rights  of  the  colonists  of 
English  birth  and  their  descendants,  as  fully  as  those  of  native- 
born  subjects  of  the  same  race  residing  in  England :  and  no 
permanent  alteration  of  common  law  liberties,  as  to  them,  oc- 
curred during  the  period  of  the  union  with  the  mother  country.* 

§  133.  As  has  been  remarked  in  the  first  chapter  (§  42),  the 
term  liberty,  when  used  to  express  an  actual  condition  of  privi- 
lege enjoyed  by  a  person  living  in  political  or  civil  society,  can 
only  be  described  as  the  effect  of  laws  resting  on  the  sovereign 
power  of  some  state  or  separate  political  ^ooA&tj ^—positive  law, 
in  the  comprehensive  sense  in  which  it  had  been  herein  before 
used  :  while,  in  the  conception  of  that  effect,  as  constituing  a  con- 
dition either  of  liberty  or  its  opposite,  not  only  the  purpose  and 
object  of  the  law  must  be  considered,  but  also  its  character  as  a 
relation  between  superior  and  inferior,  or  in  other  words,  its 
source,  authority  and  extent. 

Regarding  law  only  as  the  expressed  will  of  a  sovereign,  or 
of  a  possessor  of  that  sovereign  and  supreme  authority  which 
must  in  everj  state  have  intrinsically  the  same  nature,  and  lib- 
erty  only  as  the  result  of  law, — every  condition  of  privilege,  or 
degree  of  liberty  which  may  in  different  states  be  attributed  to 
private  persons  may  be  said  to  have  the  same  foundation.  Where 
a  distinction  is  observed  in  the  nature  of  municipal  law,  as 

which  ought  to  be  distinguished  from  the  politico-ethical  question,  noted  in  the  first 
chapter,  respecting  the  authority  of  a  law  of  nature ;  being  distinct  questions :  the  one 
of  law,  positive  law, — tlie  other  of  ethics  or  political  science. 

'  American  Tracts,  London,  1766,  Dummer's  Defence  of  the  New  England  charters, 
p.  49.  And  compare  the  cases  cited  in  note  to  §  126.  The  paper  by  Bentham,  1803, 
entitled,  "  A  plea  for  the  constitution,''  and  relating  to  the  illegality  of  certain  local 
laws  in  New  South  Wales,  will  be  found  interesting  in  connection  with  the  subject  of 
this  chapter.  So  also  Lang's  Freedom  and  Independence  for  the  Golden  Lands  of  Aus- 
tralia, London,  1852. 

9 


];80  LFBERTT CIVIL   AND   POLITICAL. 

being  either  public  or  private,  the  freedom  of  action  which  is 
enjoyed  by  private  persons  in  a  state  or  political  society  may  be 
called  the  result  of  private  law.  But  since  there  must  be  in  all 
states  a  public  law,  or  law  of  political  constitution,  by  which 
the  source,  duration  and  extent  of  the  private  law  is  determined,' 
the  effect  of  that  public  law  is  always  an  essential  element  of 
the  liberty  enjoyed  by  private  persons  in  the  ordinary  relations 
of  civil. society,  those  which  are  ordinarily  considered  distinct 
from  the  public  or  political  relations  of  the  state. 

§  134-.  Whatever  condition  of  a  natural  person,  who  is  a  mem- 
ber of  a  civil  state,  may  be  called  liberty,  must  be  juridically 
known  as  composed  of  individual  and  relative  rights ;  since  it 
consists  in  relations  existing  under  law :  and  those  rights  may 
be  called  liberties — though  with  constant  reference  to  the  ex- 
istence of  law.  In  all  states  wherein  a  public  law,  or  law  of 
political  constitution  (in  any  proper  sense  of  the  word  law),  can 
be  said  to  exist,  a  distinction  may  be  made  between  that  liberty 
of  the  individual  members  of  political  society  which  exists  in 
civil  or  social  relations,  (which  may  be  termed  liberty  by  private 
law,)  and  liberty  of  action  in  connection  with  the  public  and 
political  life  of  the  state,  (liberty  by  public  law.)  The  first 
might  also  be  properly  distinguished  as  social  or  civil  liberty ; 
the  second,  political  liberty.'  But  since,  wherever  the  last  can 
be  said  to  exist,  the  first,  or  liberty  by  private  law,  acquires  a 
distinctive  part  of  its  nature  in  the  guarantees  afi'orded  to  it  by 
the  public  law, — in  such  states  the  definition  of  the  term  civil 
liberty  includes  the  basis  of  private  rights  in  the  public  law ; 
since  the  nature  and  existence  of  private  law  is  itself  the  topic 
of  a  law  in  the  strict  sense  of  the  word. 

§  135.  "When  in  English  and  American  jurisprudence  civil 
liberty,  in  general,  or  any  particular  right  or  liberty  is  spoken 
of  as  the  result  of  the  law  of  England,  and  attributed  to  any  pri- 
vate persons  subject  to  the  sovereignty  of  the  British  empire, 
the  political  foundation  of  the  law  by  which  the  rights  of  pri- 
vate persons  are  defined  is  always  indirectly  referred  to,  and  the 

•  Bacon,  De  Aug.  Scien.  L.  8,  c.  3,  10.  Aphorism  3.  "  At  Jus  Privatum  sub 
tutela  Juris  Publici  latet." 

'  Comp.  1  Bla.  Comm.,  p.  126,  n.  by  Christian ;  Chipman,  on  Gov.,  p.  50.  Whe- 
well :  El.  Mor.  &  Pol.,  §  535,  distinguishes  between  social  freedom  and  political  freedom. 


COAEMON    LAW — ^NATIONAL.  I3l 

various  public  guarantees  by  whicb  private  riglits  or  liberties 
become  identified  with  the  public  law.  So  far  as  the  individual 
and  relative  rights  existing  under  the  English  law,  and  which 
are  called  "liberties," — "civil  liberties," — "the  liberties  of  the 
subject," — "  the  privileges  and  immunities  of  Englishmen,"  * 
have  a  peculiar  character,  it  is  rather  in  the  origin,  duration  and 
extent  of  the  law  in  which  they  are  founded,  than  in  the  charac- 
teristics of  those  mutual  relations  which  that  law  establishes  be- 
tween private  persons.  For,  regarded  merely  as  existing  in  re- 
lations between  private  persons,  the  same  individual  and  rela- 
tive rights  may  be  found  under  the  law  of  other  states  or  coun- 
tries. The  use  of  these  terms  always  includes  in  some  degree 
the  idea  of  political  liberty,  and  the  foundation  of  private  law. 

§  136.  The  political  foundation  of  law  in  the  colonies  has 
already  been  in  part  indicated.  It  was  a  mark  of  these  rights 
or  liberties  of  the  English  colonist  that  they  rested  on  "  common 
law ; "  which,  regarded  only  as  a  private  law,  or  law  determin- 
ing the  relations  of  private  persons,  was  a  law  having  a  distinct 
basis  in  the  will  of  the  nation,  as  opposed  to  the  will  of  any 
particular  part  or  portion  of  the  inhabitants  exercising  a  sepa- 
rate or  local  power, '^  or  of  any  person  or  body  of  persons  in  the 
realm,  not  identified,  by  public  law,  with  the  nation  as  a  politi- 
cal unit :  a  law  alterable  indeed  by  the  act  of  the  supreme  or 
sovereign  power,  and  by  that  power  as  vested  in  a  government ; 
but  that  government — one  which  was  assumed  to  be,  by  its  par- 
liamentary constitution,  the  representative  and  oi-gan  of  a  whole 
nation.  The  common  law  had  therefore  an  integral  existence 
in  each  part  of  the  empire  at  the  same  time ;  being  therein  dis- 
tinguishable from  the  concurrent  rules  of  a  number  of  indepen- 
dent provinces  or  localities. 

'  2  Co.  Litt  cap.  29.  (4.)  "  Aut  disseisietur  de  libero  tenemento  suo,  vel  libertati- 
bus  [Mag.  Ch.]     This  word  libertates,  liberties,  hath  three  significations: 

1.  First,  as  it  hath  been  said,  it  signifieth  the  laws  of  the  realme,  in  which  respect 
this  charter  is  called,  charta  libertatum. 

2.  It  signifieth  the  freedomes  that  the  subjects  of  England  have." 

'  Glanvil's  Pref  to  Fortescue  de  Laudibus,  p.  29,  quoting  Brompton  as  saying,  after 
mentioning  the  thr^e  sets  of  local  laws — West  Saxon,  Mercian,  and  Danish,  prevailing 
in  England :  "  '  Iste  rex  Edwardus  tertius  (the  confessor)  wnam  legem  communem 
edidit,  quae  leges  Edwardi  usque  hodie  vocantur,'  which,  by  the  way,  helps  us  to  the 
original  meaning  of  the  phrase  common  Imu  (and  different  from  that  in  which  it  is  now 
taken)  which  was  therefore  called  common  because  it  extended  to  all  England,  whereas 
before,  different  parts  had  been  ruled  by  different  laws." 


132  NOT   ALL   TRANSFERABLE. 

It  was  also  a  law,  in  its  ordinary  operation,  judicially  re 
ceived  as  of  constant  or  customary  existence ;  not  as  referable 
to  some  recorded  act  of  the  depositaries  of  supreme  power,  con- 
ferring those  liberties  as  something  which  they  might  either 
give  or  refuse.  It  was  a  law  not  taken  to  exist  irrespectively 
of  political  authority,  but  yet  not  taken  to  rest,  in  the  first  in- 
stance, on  acts  of  positive  legislation.  In  being  derived  from  a 
judicial  apprehension  of  natural  reason,  it  was  not  indeed  more 
jural  than  the  statute  law,  but  differed  from  it  in  not  being  so 
specifically  devised  and  promulgated  in  reference  to  persons  and 
things  in  and  for  a  certain  territory  only.  Therefore,  so  far  at 
least  as  it  defined  relations  of  persons  without  reference  to  spe- 
cific things  in  England,  it  was  a  law  which  might  be  taken  to 
be  a  juridical  indication  of  natural  reason  in  reference  to  the 
relations  of  the  persons  to  whom  it  applied,  not  in  England  only, 
where  it  originally  prevailed  as  the  territorial  law,  but  wherever 
they  might  remain  under  the  same  national  dominion.  This 
personal  character  of  the  common  law  is  shown  when,  in  de 
scribing  the  liberties  or  rights  created  by  that  law,  they  are 
termed  "  the  liberties  of  Englishmen."  > 

§  137.  As  is  shown  in  the  passage  from  Blackstone  before 
cited,  and  the  writings  of  American  jurists  referred  to  in  the 
same  connection,  it  is  not  to  be  supposed,  when  the  common  law 
of  England  is  spoken  of  as  a  personal  law  for  the  colonists,  and 
as  determining  their  rights  and  liberties  in  their  new  domicil, 
that  the  entire  body  of  rules  comprised  under  that  name,  in 
England,  had  an  equal  extent  in  the  province.  As  has  been 
shown  in  the  first  chapter  (§  23)  the  rights  of  persons  may  be 
distinguished  into  rights  existing  either  in  relations  in  respect 
to  persons  as  the  objects  of  action,  or  relations  in  respect  to 
things  as  the  objects  of  action.  The  law  prevailing  in  any  place 
or  territory  is  therein  a  rule  of  action  in  reference  to  things,  as 
well  as  pereons,  (though  persons,  or  the  actions  of  persons,  are 
the  ultimate  objects  of  every  law,)  and  it  is  plain  that  many 
things  (either  natural  or  legal  things)  which  were,  in  England, 
the  objects  of  action  contemplated  by  the  common  law,  did  not 
exist  in  the   colonies.     A  very  considerable   portion   of  that 

•  1  Bl.  Comm.  p.  144. 


AS   A    LAW   OF   THINGS.  133 

division  of  the  coirimon  law  which  is  called  by  Blackstoiie  the 
"  law  of  things,"  was  therefore  not  transferred  with  the  colonists 
to  America  as  a  law  personal  to  them ;  and,  so  far  as  the  lib- 
erties of  persons  in  England  consisted  in  rights  of  action  in  refer- 
ence to  those  things,  they  had  no  existence  in  the  colony.' 

The  legal  liberty  of  any  person  in  a  civil  state  cannot  be 
fully  defined  without  considering  his  rights  of  action  in  respect 
to  things :  yet  those  rights  of  action  which  exist  in  relations  to 
other  persons  as  the  objects  of  action,  without  special  reference 
to  things,  or  without  reference  to  specific  things,  may  be  taken 
to  constitute  his  general  liberty  of  action.  Individual  and  rela- 
tive rights,  as  defined  in  the  first  chapter,  may  thus  be  juridi- 
cally  recognized  to  be  rights  belonging  to  persons  in  reference 
to  other  persons,  without  reference  to  specific  things ;  and  the 
law  of  England  determining  and  maintaining  those  rights,  as 
rights  of  the  native  or  domiciled  inhabitant  of  England,  with- 
out reference  to  what  is  called  by  Blackstone  the  law  of  things, 
may  be  called  the  law  of  the  liberties  or  privileges  of  English- 
men— the  civil  liberties  of  the  freeborn  English  subject.  With 
this  limitation  in  respect  to  things,  the  law  determining  the 
liberties  of  English  subjects,  in  England,  may  be  said  to  have 
accompanied  the  colonists  as  a  personal  law. 

§  138.  Further  it  may  be  remarked,  by  way  of  defining 
what  that  liberty  or  degree  of  privilege,  under  the  common  law 
of  England,  was  not,  and  as  having  an  important  bearing  on 
the  peculiar  questions  connected  with  this  subject,  that,  so  far 
as  the  liberties  of  British  subjects,  thus  secured  to  them  and 
resting  on  the  imperial  or  national  sovereignty,  consisted  in 
rights  of  persons  in  reference  to  things,  they  could  only  be 
rights  in  reference  to  such  things  as  were  known  to  the  law  of 
England  :  and  that,  so  far  as  a  right  of  property,  or  to  property, 
was  one  of  those  liberties,  it  was  only  to  such  objects  of  pos- 
session as  could  lawfully  be  property  by  the  law  of  England. 

§  139.  The  possession  of  liberty  in  any  extended  sense,  or 
the  enjoyment  of  a  free  condition  or  status,  irrespective  of  its 

'  Compare  also,  KentV  Comm.  ii.  152.  8  Peters,  658.  1  Comstock,  31-36.  J. 
Mass.  R  60.  2  do.  584.  Settlements  in  America,  vol.  i.,  pp.  303,  304.  Vol.  I.  of 
Mass.  Quart.  R.  4G8-470. 


134  ELEMENTS   OF   LIBERTY. 

connection  with  public  law,  must  always,  under  any  system  of 
municipal  (national)  law,  consist  in  the  exercise  of  individual 
and  relative  rights.  A  free  condition  may  however  be  attri- 
buted to  a  pereon  who  does  not  actually  sustain  those  relations 
towards  specific  persons  in  which  relative  rights  exist.  A  legal 
capacity  for  those  rights  is,  however,  taken  to  be  an  essential 
attribute  of  a  free  condition,  whenever  a  distinction  is  made  be- 
tween liberty  and  its  opposites,  as  contrasted  results  of  private 
law  ;  though  individual  or  absolute  rights — rights  in  relation  to 
the  community  at  large,  constitute  the  essential  part  of  free 
status  or  legal  condition.  The  English  law  determining  indi- 
vidual rights  and  the  capacity  for  relative  rights  may  be  called, 
more  particularly  than  the  rest,  the  law  of  the  status  or  condi- 
tion of  those  to  whom  it  applied  as  a  personal  law. 

§  140.  When  the  individual  rights  which  are  essential  to  the 
enjoyment  of  liberty  of  condition  are  declared  to  be  the  right 
of  personal  liberty,  the  right  of  personal  security,  and  the  right 
to  the  acquisition  and  enjoyment  of  private  property,  still  the 
condition  which  they  constitute  cannot  be  apprehended  without 
the  complete  analysis  of  the  laws  by  which  those  rights  are 
vindicated  or  maintained.  In  a  definition  of  a  state  of  liberty, 
as  opposed  to  domestic  slavery,  or  bondage  correlative  to  a 
right  of  dominion  in  private  persons,  these  three  terms,  in  a 
general  sense,  may  be  taken  to  have  the  same  meaning  in  all 
countries.  But  as  defining  the  elements  of  civil  liberty,  as  that 
term  is  employed  by  European  and  American  authors,  they  are 
of  little  significance,  unless  stated  in  connection  with  the  guar- 
antees by  which  they  are  preserved.  It  would  be  going  beyond 
the  scope  of  the  present  treatise  to  describe  the  guarantees  for 
the  rights  of  private  persons  under  the  law  of  England  at  any 
particular  period  of  its  history : — habeas  corpus,  trial  by  jury, 
the  rules  of  evidence,  the  independence  of  the  judiciary,  rights 
of  counsel,  publicity,  utterance,  &c.,  and  above  all,  the  definitive 
or  positive  nature  of  that  law,  in  having  a  settled  supremacy 
independent  of  the  will  and  moral  judgment  of  all  who  are 
not  identified  with  the  actual  possessors  of  ultimate  sovereign 
power.  A  marked  peculiarity  of  the  common  law  of  England 
is  the  degree  in  which  it  unites  the  characteristics  of  public  and 


SERVITUDE.  186 

private  law ;  so  that  the  exposition  of  private  rights  is  never 
separable  from  that  of  a  political  constitution.  These  riglits  or 
guarantees,  though  attributed  to  ancient  and  customary  law, 
have  been,  at  different  times,  defined  and  maintained  with  differ- 
ent degrees  of  precision  ;  and  their  legal  character  lias  tlierefore 
greatly  varied,  even  during  the  last  two  centuries.'  The  ques- 
tion, how  fur  the  common  law  of  England,  in  being  public  law, 
was  the  same  in  England  and  America,  was  the  question  in 
which  the  revolution  of  the  colonies  originated.  By  the  trans- 
plantation of  the  common  law  to  each  several  colony,  with  a 
territorial  extent  therein,  it  acquired,  in  each,  a  new  and  sepa- 
rate character,  as  the  local  law  of  each.  But  still,  so  far  as  it 
was  a  law  of  personal  condition,  or  the  law  of  those  rights 
which  are  commonly  denominated  personal  rights,  its  pro- 
gressive development  was  never  independent  or  isolated  in  the 
several  divisions  of  the  Empire.  To  that  extent  it  continued 
to  be  a  national  system,  and  the  rights  and  guarantees,  above 
spoken  of,  continued,  in  their  progressive  development,  to  be  the 
same  rights  in  respect  to  their  juridical  source,  or  to  be  rights 
under  one  and  the  same  system  of  jurisprudence ;  though  main- 
tained and  exercised  under  the  local  or  internal  law  of  distinct 
political  jurisdictions." 

§  141.  Under  the  relation  of  master  and  servant,  as  it  has 
been  known  in  different  times  and  countries,  an  immense  varie- 
ty of  reciprocal  rights  and  obligations  may  be  comprehended ; 
and  the  legal  incidents  of  the  relation  have  varied  in  England, 
during  the  period  in  which  its  "  common  law  "  has  been  histori- 
cally known  to  exist,  as  much  as  in  any  other  Eitropean  country. 
Although,  for  more  now  than  three  quarters  of  a  century,  a  con- 
dition either  of  chattel  slavery,  or  of  involuntary  servitude,  ex- 
cept by  force  of  penal  statutes,  has  been  held  to  be  contrary  to 

'  For  the  charters  of  English  liherties  of  the  subject  see,  besides  the  English  Sta- 
tutes at  Large,  Co.  Litt.  2(i  Inst. ;  South  Carohna  Stat,  at  large,  preface  and  pp.  72— 
129,  containing.  Magna  Charta  of  King  John  (1215),  Charter  of  Edward  I.  (1297), 
the  Petition  of  Rights  (1628),  the  Habeas  Corpus  Act,  31  Car.  2,  c.  2.  (1679),  Bill 
of  Eights,  1  William  and  Marj",  sess.  2,  c.  2  (1689).  See  also  Lieber's  Civil  Liberty 
and  Self  Government.  And  for  a  summary  of  the  principal  usages  and  acts  from 
which  a  popular  and  consolidated  presentment  of  the  public  and  private  rights  of  the 
English  nation,  answering  to  a  written  constitution,  at  the  present  day  might  be  made, 
see  Wade's  History  of  the  Middle  and  Working  Classes,  Part  IIL  c.  5. 

*  Compare  ajite,  §§  48-5-1. 


136  VILLENAGE. 

I  the  local  or  internal  law  of  England,  it  was  far  from  being  bo 

/  settled  at  the  time  of  the  establishment  of  the  English  colonies 

/  in  America  and  of  the  grants  of  their  respective  charters.     Vil- 

lenage  continued  to  exist  in  England  until  the  year  1661 ;  if,  as 

.Blackstone  asserts,  it  may  be  taken  to  have  been  abolished  by 

the  act  of  that  year,  12  Car.  2.  c.  24,  reducing  all  tenures  to 

free  and  common  socage.*     In  some  of  its  forms,  villenage,  in 

England,  was  nearly  equivalent   to  chattel  slavery :  the  villein 

in  gross  or  at  la7ye  being,  according  to  Littleton,  "  annexed  to 

jthe  person  of  the  lord,  and  transferable  by  deed  from  one  owner 

to  another,  and  if  he  ran  away  from  his  lord,  or  was  purloined 

'  from  him,  he  might  be  claimed  and  recovered  by  action,  like 

beasts  or  other  chattels."  '^ 

But  villenage  in  England,  after  the  time  of  the  Xorman  in- 
jvasion,  had  always  the  character  of  a  feudal  relation,  and  was 
connected  with  the  tenure  of  land.  The  legal  personality  of 
the  villein,  and  a  capacity  for  rights  in  some  degree,  was  also 
acknowledged.  If  under  the  Saxon  government  there  had  been 
a  class  of  absolute  slaves,^  it  is  supposed  by  Wright,  in  his 
treatise  on  Tenures,  that  the  Normans,  carrying  out  the  feudal 
constitution  of  a  civil  state,  admitted  such  slaves  to  the  oath  of 
fealty,  creating  the  legal  obligations  of  a  legal  person,  which 
conferred  a  right  to  protection  under  the  law,  and  raised  the 
serf  to  a  kind  of  estate  superior  to  downright  slavery,  though 
inferior  to  every  other  condition.*     The  law  protected  the  per- 

'  2  Bl.  Comm.  96.     Loflft's  Rep.  8. 

"  1  Co.  Lit.  §  181. 

'  An  historical  Discourse  of  the  Uniformity  of  the  Government  of  England,  by  Na- 
thaniel Bacon  of  Grais'  Inne,  (16^7)  p.  56.  Speaking  of  villeins  in  the  Saxon  times, — 
"The  most  inferiour  of  all  were  those  which  were  anciently  called  laEzi  or  slaves; 
those  were  the  dregs  of  the  people,  and  wholly  at  the  will  of  their  lord  to  do  any  ser- 
vice, or  undergo  any  punishment ;  and  yet  the  magnanimity  of  the  Saxons  was  such  "  &c 
— stating  their  merciful  treatment  of  slaves;  *  *  *  "and  though  the  iiisolency  of  the 
Daues  much  quelled  this  Saxon  noblenesse,  yet  it  was  revived  again  by  the  Confessor's 
laws,  which  ordained  that  the  lords  should  so  demean  themselv?s  towards  their  men, 
that  they  should  neitlier  incurre  guilt  against  God,  nor  offence  against  the  king ;  or, 
which  is  all  one,  to  respect  them  as  God  s  people  and  the  king's  subjects." 

And  see  Wade's  Hist,  of  the  Middle  and  Working  Classes,  Part  i.,  ch.  1.  Turner's 
Anglo-Saxons,  vol.  iii.,  p.  91. 

*  Wrights  Tenures,  pp.  215-217.  2  Bl.  Comm.  92.  Wade's  Hist.  &c.,  p.  9  :  "In 
1102  it  was  declared  in  the  great  council  of  the  nation,  held  at  Westminster,  unla^vful 
for  any  man  to  sell  slaves  openly  in  the  market,  which  before  had  been  the  common 
custom  of  the  country."  The  author  does  not  give  the  authority :  such  a  declaration 
would  have  been  equivalent  to  a  repudiation  of  absolute  chattel  slavery. 


SERVICE  BY   CONTKACT.  137 

eons  of  villeins,  as  the  king's  subjects,  against  atrocious  injuries 
of  the  lord ;  for  he  might  not  kill  or  maim  his  villein  :  and  the 
latter  had  a  right  of  action  against  his  lord  for  the  mayhem  of 
his  own  person,  or  the  murder  of  his  ancestor.  Neifes  had  also 
an  appeal  of  rape,  in  case  the  lord  violated. them  by  force.' 

Even  in  the  times  of  Littleton  and  Coke  it  was  said  that  vil- 
lenage  could  exist  only  by  prescription,  or  by  confession  in  open 
court.  And  when  most  opposite  to  a  free  condition  it  had  some- 
thing of  a  local  character,  relating  to  the  land  of  the  lord  to 
whom  the  villein  services  were  due.*^  It  was  therefore  an  inci- 
dent of  those  relations  of  persons  to  things,  or  of  the  relations 
of  persons  to  other  persons,  in  respect  to  those  things  which  were 
not  transferable  with  the  English  colonists  to  America,  and  did 
not  therefore  exist  there  under  the  common  law,  i.  e.  feudal  es- 
tates, which  were  not  established  in  America.' 

§  142.  The  relation  of  master  and  servant,  known  under  the 
modern  common  law  of  England  and  the  same  law  operating  in 
the  British  colonies,  with  personal  extent  for  the  inhabitants 
who  are  of  British  race  or  descent,  is  a  relation  exclusively 
founded  on,  or  arising  out  of,  the  voluntary  contract  of  the  par- 
ties.* The  relation  between  a  minor  apprentice  and  his  master, 
under  the  same  law,  is  a  substitute  for,  or  a  modification  of,  the 
paternal  authority  ;  and  the  reciprocal  rights  and  obligations  of 
the  parties  are  derivative  from  the  relation  of  parent  and  child. 
This  relation,  as  an  effect  of  the  common  law  of  England  having 
personal  extent,  existed  in  all  the  colonies :  being  created  under 
the  administrative  authority  of  the  inferior  courts,  justices  of  the 
peace  or  other  officers,  to  whom  a  ^waM-paternal  authority  of 
guardianship  had  been  delegated  by  special  statutes,  or  who,  in 

'  1  Co.  Litt.  §§  189,  190.  In  respect  to  the  community  at  large  the  villein  was  a 
legal  person,  as  much  as  any  liber  homo.  2  Co.  Litt.  cap.  1,  (7) :  "  Concessimus  et 
dedimus  omnibus  liberis  hominibus  regni  nostri,  &c.  These  words  in  Magna  Charta 
doe  include  all  persons  ecclesiasticall  and  temporall,  incorporate,  politique,  or  naturall; 
nay,  they  extend  also  to  villeines,  for  they  are  accounted  free  against  all  men,  sa%'ing 
against  the  lords."  2  Co.  Litt.  cap.  29,  (1):  "Nullus  liber  homo  capiatur  vel  im- 
I'risonetur.  This  extends  to  villeins,  saving  against  their  lord;  for  they  are  free 
against  all  men,  saving  against  their  lord." 

'  2  Bl.  Comm.  92-98.  Wilkins's  Leg.  Saxon,  p.  229,  et  cap.  65.  Leg.  Guliel.  L 
"  Prohibemus  ut  nullus  vendat  hominem  extra  patriam." 

^  And  see  Neal  v.  Farmer,  9  Georg.  R.  564. 

*  For  a  succinct  account  of  the  relation  between  master  and  servant  after  the  ex- 
tinction of  villenage,  see  Wade's  History  Ac.  Part  i. 


138  MAflTEB   AND   SERVAlTr. 

being  appointed  for  oflSces  known  to  the  common  law  of  Eng- 
land, assumed  it  as  an  incident  of  office  under  that  law  :  the 
rights  and  duties  of  the  parties  being  determined  by  common 
law  rules  ;  though  the  establishment  of  the  relation  was,  in  most 
of  the  colonies,  regulated  by  special  statutes. 

§  143.  Tliough  the  relation  of  master  and  servant,  as  thus  re- 
cognized under  the  common  law  of  England  and  the  colonies,  is 
one  which  may  modify  in  many  important  respects  their  rights 
and  obligations  in  respect  to  third  persons,  yet,  so  far  as  the  obliga- 
tion of  sei-vice  has  depended  on  contract  or  the  voluntary  choice 
of  the  servant,  it  does  not  appear  ever  to  have  been  taken  to 
create  a  right  to  that  service  as  against  other  persons ;  so  that 
the  act  of  decoying  or  inveigling  that  servant,  from  such  ser- 
vice, would  constitute  a  wrong  which  the  law  would  remedy  in 
maintaining  the  master's  right.  The  right  of  the  master  being 
correlative  to  obligations  on  the  part  of  the  servant  only,  the  law 
has  given  a  remedy  in  such  cases  only  against  the  servant.  It 
is  doubtful,  too,  whether  even  the  forcible  abduction  of  an  adult 
servant  could  be  resisted  by  the  master,  as  possessing  any  spe- 
cific right  in  respect  to  such  servant,  or  as  having  any  other  ca- 
pacity or  right,  in  such  case,  than  that  of  any  third  party  aiding 
and  assisting  such  servant  in  defence  of  his  individual  right  to 
pei'sonal  freedom.'  If,  however,  the  servant  should  be  under 
age,  whether  aj^j^renticed  or  serving  with  or  without  wages,  the 
master  lias  been  regarded  as  standing  in  loco  parentis  ;  ^  having 
a  right,  coupled  with  a  duty,  to  resist  such  abduction.  The 
right  of  the  master,  in  the  case  of  such  minors,  being  also  a  right 
correlative  to  obligations  on  the  part  of  third  persons,  or  the 
community  at  large  ;  and  it  would  appear  to  have  been  a  right 
of  personal  custody  maintainable  at  common  law,  by  the  reme- 
dial writs  of  habeas  coi'pus  and  personal  replevin.  Tlie  master 
in  this  case  standing  in  a  position,  as  to  third  parties,  similar  to 
that  of  a  husband,  parent  or  guardian. 

So  far  as  the  relation  of  master  and  servant  has  been  founded 
on  contract  between  them,  it  has  been  governed  by  the  common 

'  In  Hughes's  Grand  Abridg.  p.  1299,  it  is  held  that  a  master  may  justify  an  as- 
sault in  defence  of  his  servant. 

»  2  Kent's  Comm.  p.  261,  (283  of  7th  Ed.) 


STATUS    BY    LAW    OF   NATI0N8.  139 

law  rules  applicable  to  contracts.  The  English  common  law,  as 
it  has  been  received  in  America,  has  never  enforced  the  con- 
tract, as  against  the  party  contracting  to  serve,  by  compelling  a 
specific  performance.  It  has  only  given  a  remedy  between  the 
parties  in  pecuniary  damages,  as  in  case  of  a  breach  of  any 
other  contract.* 

§  144.  It  has  been  shown  in  the  first  chapter  that  the  un- 
written or  common  law,  in  England  as  well  as  in  every  other 
country,  being  derived  by  a  judicial  recognition  of  natural  rea- 
son applied  to  the  necessary  conditions  of  human  existence, — 
in  determining  what  principles  are  to  be  received  as  rules  of 
natural  reason  with  the  force  of  positive  law,  the  tribunals  of 
each  country  must  refer  to  standards  indicatory  of  the  juridical 
will  of  the  state  from  which  they  derive  their  authority.  It 
was  further  shown  that  among  these  standards  are  those  prin- 
ciples which  are  known  from  history  to  prevail  generally  among 
all  nations,  forming  a  general  or  universal  jurisprudence — a 
historical  law  of  nations — which  must  be  received  as  part  of 
the  jurisprudence  of  the  state  ;  unless  the  local  law  of  the  state, 
derived  from  its  own  national  usage  and  judicial  precedent,  or 
from  positive  legislation,  contains  principles  promulgated  with 
universal  personal  extent,  having  a  contrary  effect.  Tlierefore 
in  determining  what  that  common  law  of  England  was  which 
accompanied  the  British  colonists  in  America  as  a  personal  law, 
it  must  be  inquired  whether,  at  the  time  of  the  settlement  of 
the  colonies,  there  were  any  principles  of  universal  jurisprudence 
— historical  law  of  nations — aff'ecting  the  status  or  condition 
of  natural  persons,  wliich  could,  in  England,  be  judicially  ap- 
plied as  part  of  the  common  law ;  and  whether,  at  that  time,  the 
local  law  of  England,  or  rather  the  law  derived  trom  its  own 
several  national  usage,  and  its  own  judicial  precedents  or  legis- 
lation (operating  without  reference  to  the  existence  of  other 
states  or  nations),  contained  rules,  having  a  contrary  effect, 

'  1  Blackf.  Ind.  R.  122,  (1821)  case  of  Mary  Clark,  a  -woman  of  color.  Marg.  note. 
"It  is  a  general  rule  that  covenants  for  personal  sen-ice  cannot  be  specifically  enforced 
either  at  common  law  or  by  statute.  The  case  of  apprentices  depends  on  parental  au- 
thority, that  of  soldiers  and  sailors  on  national  policy."  The  condition  of  adult  ser- 
vants indentured  under  contract,  which  was  common  during  the  colonial  period,  de- 
pended on  special  .statutes.     Sec  porf,  eh.  v. 


140  EXTENT   OF   ENGLISH    LIBERTIES. 

which  were  so  promulgated  as  to  have  universal  personal  ex- 
tent in  England,  and  therefore  to  prevent  the  judicial  recogni- 
tion and  application  of  those  principles  of  universal  jurispru- 
dence or  the  law  of  nations.^ 

§  145.  This  inquiry  into  the  principles  of  the  law  of  nations^ 
affecting  personal  condition,  considered  as  part  of  the  common 
law  of  England,  will  be  examined  in  a  separate  chapter.  But 
it  is  convenient  here  to  remark,  though  actually  by  way  of  an- 
ticipation, that  in  tlie  view  of  almost  every  historical  writer 
who  has  treated  of  the  establishment  of  laws  in  the  American 
colonies,  the  private  law  of  England,  or  the  private  law  having 
territorial  extent  in  England,  during  the  period  when  the 
colonial  patents  and  charters  were  granted,  is  taken  to  have 
attributed  the  individual  and  relative  rights  before  spoken  of  as 
being  called,  in  connection  with  their  guarantees  in  the  public 
law, — the  liberties  of  Englishmen — the  privileges  and  immuni- 
ties of  the  free-born  British  subject, — without  distinction  of  race, 
descent,  or  physical  constitution,  to  all  natural  persons  actually 
within  the  territorial  limits  of  the  British  Isles ;  or  at  least  to  all 
native  and  domiciled  inhabitants ;  subject  only  to  the  rights  of 
others  having  the  same  general  denomination,  growing  out  of 
the  relations  of  persons  all  equally  privileged  in  respect  to  that 
law ; — tlie  relations  of  parent  and  child,  husband  and  wife, 
master  and  servant,  the  relations  of  contract,  those  founded  on 
the  feudal  tenure  of  land,  and  those  incident  to  the  punitive 
and  remedial  laws  of  the  state.  Personal  liberty,  in  the  sense 
of  one  of  these  rights,  signifying  the  freedom  to  dispose  of  one's 
person  and  powers  of  body  and  of  mind,  without  control  by 
others  who  are  not  representatives  of  the  ultimately  supreme 
authority. 

§  146.  When  it  is  said  that  the  law  of  nations  is  part  of  the 
common  law  of  England,'^  it  cannot  be  so  said  with  propriety  if 
by  this  it  is  intended  that  the  international  law, — meaning  that 
rule  of  which  states  are  the  subjects,  is  part  of  that  common  law. 

'  Compare  ante,  §  99. 

*  As  in  1  Bla.  Com.  273.  4,  same,  67.  1  Kent's  Com.  p.  1.  Triquet  v.  Bath, 
3  Burr.  1478.  Heatlifield  v.  Chilton,  4  Burr.  2015.  Case  of  Henfield,  by  Judge 
Wilson,  Duponceau,  p.  3,  and  note.     3  Dallas,  R.  392. 


LAW    OF    NATIONS PEITATE    LAW.  141 

For  the  common  law  is  laio  in  the  strict  and  proper  sense,  which 
tliis  international  law  is  not.'  The  common  law  is  a  municipal 
law  (national,  jus  civile,  ante  §  9,  n.)  in  being  founded  on  the 
national  sovereignty  of  England,  as  the  absolutely  independent 
authority  for  that  rule  of  action  which  determines  the  relations 
of  the  individuals  known  as  its  subjects,  according  to  the  princi- 
ples which  define  the  existence  and  mode  of  action  of  sovereign 
states.  But  the  historically  known  law  of  nations — ^universal 
jurisprudence,  herein  before  defined,  so  far  as  it  contains  princi- 
ples determining  relations  of  private  persons,  is  an  indication 
and  criterion  of  natural  reason,  to  be  judicially  received,  not  as 
having  any  authority  in  itself  independent  of  that  sovereignty 
upon  which  the  municipal  law  of  England  (national  law — both 
internal  and  international  according  to  its  application)  rests,  but 
because  already  customarily  received  and  allowed  as  an  exposi- 
tion of  its  juridical  will,  unless  the  law  peculiar  to  the  territo- 
rial dominion  of  that  sovereignty,  founded  on  local  precedents 
or  legislation,  requires  the  application  of  principles  having  a 
contrary  eflect. 

Note. — As  has  been  shown  in  the  second  chapter,  the  juristical  conception  of  a 
universal  jurisprudence  or  Iwr  nf  nations  requires  the  recognition  of  some  persons  as 
alien,  or  as  having  sustained  relations  created  by  foreign  laws  ;  and  the  exposition  of 
principles  having  that  diameter  cannot  be  looked  for,  in  the  juridical  history  of  any 
one  state  or  nation,  before  the  time  when  a  peaceful  intercourse  has  subsisted,  under 
its  jurisdiction,  between  the  native  or  domiciled  subjects  of  the  state  and  persons 
recognized  as  subjects  of  foreign  states ;  that  is,  before  a  private  international  law 
has  become  a  distinguishable  part  of  the  national  law.     (See  ante,  §§  92-96).     The 

thirtieth  chnpter  of  Magna  Charta  declares,  "  All  merchants  (if  they  were  not  openly 
prohibited  before)  shall  have  their  safe  and  sure  conduct  to  depart  out  of  England,  to 
come  into  England,  to  tarry  in,  and  go  through  England,  as  well  by  land  as  by  water, 
to  buy  and  sell  without  any  manner  of  evil  toUes,  by  the  old  and  rightful  customs, 
except  in  time  of  war."  (See  2  Co.  Ins.  cap.  30).  Unless  this  was  only  declaratory 
of  an  existing  common  law  principle,  it  must  be  supposed  that,  before  this,  aliens  had 
no  legal  rights  in  England,  and  that  it  is  only  after  this  period  that  a  law  of  nnt'ums 
could  find  place  in  the  common  law,  by  the  application  of  private  intemational  law. 

See  Walker's  Theory  of  the  CommoD  Law,  ch.  XX. 


CHAPTER   IV. 

THE  ESTABLISHMENT  OF  MUNICIPAL  LAW  IN  THE  COLONIES, — THE 
SUBJECT  CONTINUED.  OF  PRINCIPLES  OF  UNIVERSAL  JURISPRU- 
DENCE, RELATING  TO  FREEDOM  AND  ITS  OPP08ITE8,  ENTERING 
INTO    THE    COMMON    LAW    OF   ENGLAND. 

§  147.  It  is  proposed  in  this  cliapter  to  ascertain,  from  the 
history  of  jurispriidence  among  European  nations,  what  princi- 
ples, affecting  natural  persons  in  those  relations  which  consti- 
tute a  condition  of  freedom  or  of  bondage  under  jprivate  law, 
were  judicially  known  as  part  of  the  historical  law  of  nations  at 
the  time  of  the  planting  of  the  colonies,  and  the  date  of  their 
charters  ;  and  next,  whether  those  principles  could  be  applied, 
in  England,  as  part  of  the  common  law  derived  from  the  judi- 
cial interpretation  of  natural  reason,  to  determine  the  condition 
of  natural  persons. 

This  universal  law  or  laio  of  nations^  it  will  be  remembered, 
becomes  a  topic  of  judicial  recognition  by  an  international 
comparison  of  the  effects  of  different  systems  of  municipal  law 
in  the  relations  of  persons  considered  as  alien  to  some  one  juris- 
diction.' A  historical  investigation  of  the  law  of  nations,  as 
forming  part  of  the  common  (unwritten)  law  of  any  one  state, 
involves  therefore,  in  some  degree,  an  exposition  of  the  private 
international  law  of  that  state,  as  well  as  the  private  municipal 
(internal)  law  thereof.  It  is  thus  necessary,  in  this  chapter,  to 
anticipate  somewhat  the  subject  of  a  succeeding  chapter,  which 

'  Am,  §  94. 


ORIGIN    OF   LAWS.  143 

is — the  private  international  law,  in  England  and  America, 
during  the  colonial  period,  aifecting  relations  of  freedom  or  of 
bondage. 

§  148.  In  the  earlier  periods  of  the  existence  of  positive 
law  (as  the  subject  of  jurisprudence  is  herein  denominated  in 
respect  to  its  authority),  wlien  natural  justice — the  presumptive 
will  of  the  state,  was  ascertained  by  the  autonomous  judgment 
of  each  judicial  tribunal,  according  to  its  own  apprehension  of 
natural  reason,'  there  could  hardly  be  said  to  be  any  judicial 
rule,  forming  part  of  the  municipal  (national)  law  of  any  one 
state,  which  had,  beyond  any  other  part  of  that  municipal  law, 
a  universal  character,  or  the  character  of  an  exposition  of  the 
law  of  nature,  or  was  more  directly  derived  from  tlie  natural 
reason  of  mankind  than  any  other  legal  principle.  ,  Still  less,  at 
a  period  when  international  intercourse  was  almost  unknown, 
or  considered  beyond  the  pale  of  judicial  authority,  could  there 
be  any  rule  which  might  be  considered  a  universal  law,  or  law 
of  nations :  for  it  is  only  by  the  intercourse  of  persons  subject  to 
diflerent  municipal  laws  that  a  law  of  nations  can  be  judicially 
distinguished.  In  the  imperfect  civilization  and  intercourse  of 
nations  in  earlier  ages  the  means  of  collecting  and  digesting 
judicial  precedents  were  too  limited  to  allow  any  settled  exposi- 
tion of  natural  reason,  as  a  rule  of  action  derived  from  a  com- 
parison of  the  laws  of  various  states. 

The  jurisprudence  of  the  several  nations  of  remote  antiquity 
must  have  contained  numerous  principles  common  to  each,  but, 
previously  to  a  mutual  knowledge  of  each  other's  institutions, 
there  could  be  no  definite  acceptation  of  natural  reason  from 
the  concurrent  testimon}^  of  the  various  independent  sources  of 
positive  law.  Tlie  laws  of  the  Roman  Republic  are  the  earliest 
of  Avhicli  it  can  be  said  positively  that  they  were  founded  on  a 
recognition  of  the  force  of  the  concurrent  usage  and  legislation 
of  various  nations,  as  an  indication  of  a  rule  of  natural  reason 
deserving  to  be  judicially  received  by  any  one  state.  This 
recognition  was  made  in  legislative  action  if,  as  is  commonly 
believed,  the  laws  of  the  Twelve  Tables,  B.  C.  454,  were  com- 
piled by  persons  specially  instructed  to  regard  the  la\vs  of  the 

'  Ante,  §  29. 


144  TirK    ROMAN    LAW. 

Grecian  States/  and  it  lias  been  sho^v^^,  in  the  second  chapter, 
in  what  manner,  by  judicial  action,  a  part  of  the  Roman  law 

was  always  regarded  not  only  as  national  law,  but  as  an  exposi- 
tion of  tlie  law  prevailing  among  all  nations  or  among  the  more 
civilized.  By  the  extension  of  the  Koman  dominion,  the  whole 
national  law  acquired  more  and  more  of  this  character,  and 
this  cliaracter  or  quality  it  has  constantly  had  in  every  country 
in  Europe :  first  prevailing,  as  the  customary  or  conmion  law, 
in  countries  wliich  had  been  under  the  Roman  dominion,  and 
civilized  by  Roman  influence,  and  then  adopted  l)y  the  northern 
invading  nations,  both  as  tlie  law  having  territorial  extent  in 
the  provinces  conquered  by  tliem,  and  also  as  an  exposition  of 
the  juridical  wisdom  of  all  nations  and  all  preceding  times: 
gradually  sypplanting  the  personal  laws  which  they  brought 
with  them."  In  this  sense  it  has  been  the  common  law  of  tlie 
greater  part  of  modern  Europe,  and  of  all  those  nations  which 
constitute,  in  their  own  vocabulary,  the  civilized  world.  Its 
authority  as  law  nowhere  rests  upon  its  intrinsic  merit  as  an  ex- 
position of  natural  reason,  but  is  a  matter  of  the  customary  law 
of  each  nation ;  though  in  states  which  have  boasted  of  a  law 
of  national  origin,  it  has  been  generally  referred  to,  judicially, 
as  if  its  authority  were  dependent  upon  the  subjective  judgment 
of  the  tribunal,  accepting  it  as  pure  natural  right  or  reason.' 

'  See  Diony.  Halicar.,  Antiq.,  Lib.  X.,  cap.  57.  Heincccius:  Hist.  Jur.  Civ.  Lib. 
1,  c.  2,  g  23,  24.  Long's  Disc.,  p.  56,  n.  Horre  Jur,  pp.  30,  -40.  But  Giambatista 
Vico  held  the  .KIL  Tables  to  have  been  only  a  digest  of  the  customary  law  of  Latiuin ; 
see  London  Law  Review,  vol.  XX.,  p.  26S ;   XXL,  p.  98. 

"^  On  this  subject  see  Savigny's  Hist  of  the  Roman  Law  in  the  Middle  Ages,  first 
volume,  translated  by  Cathcart ;  and  Savigny's  Heut.  Rom.  R ,  the  last  volume. 

Sir  Wm.  Jones:  Works,  vol.  HL,  p.  TT) :  "It  [the  Code  of  Justinian  J  gives  law  at 
this  time  t  p  the  greatest  part  of  Europe:  and,  though  few  English  lawyers  dare  make 
such  an  acknowledgment,  it  is  the  true  source  of  nearly  all  our  English  laws  that  are 
not  of  feudal  origin." 

Papers  read  before  the  Juridical  Society,  vol.  1,  part  L  London  :  1855  Inaugu- 
ral, by  Sir  \\.  Bethell,  S.  G.,  p.  2  :  "  It  is  now  clear  that  the  common  law  which 
existed  in  Euirbind  at  the  time  of  the  Norman  invasion  was  in  a  great  measure  derived 
from  the  j\ni-prudence  that  had  been  introduced  and  administered  by  the  Itomans,  dur- 
ing the  300  years  of  their  dominion  in  Britain." 

It  h;is  been  a  matter  of  controversy  how  far  Bracton  drew  his  work  from  the  Cor- 
pus Juris :  see  Reeves'  Hist..  2  vol.,  pp.  86,  87,  and  4  vol.,  p.  570,  where  he  calls 
Bracton  the  father  of  English  law. 

'  See  ante,  §  34,  and  note;  Domat.  :  Civil  Law,  Pref.,  pp.  1,  2,  and  Prelim.  Tr., 
c.  xi.,  §  19.  "  But  for  the  laws  of  nature,  seeing  we  have  nowhere  the  detail  of  them 
except  in  the  books  of  the  Roman  law,"  ttc.  The  Roman  law  ma^i ,  or  may  not,  be 
accordant  with  the  laws  of  nature.     Its  authority  with  the  tribunals  of  modern  states 


BASIS   OF   RO^LAN   LAW.  146 

But,  as  tlie  recorded  historical  testimony  of  tlie  juridical  reason 
of  many  nations  and  countries,  its  value  lias  been  so  repeatedly 
acknowledged  in  English  jurisprudence '  that  reference  to  it  is 
indispensable  to  ascertain  any  legal  rule  which  can  be  attributed 
to  universal  jurisprudence  and  received  into  the  common  law 
of  England  as  the  law  of  natural  reason. 

§  149.  Tlie  jurisprudence  of  the  Koman  state  has  been  con- 
sidered by  many  of  the  modern  civilians  as  asserting  the  identity 
of  law  with  all  rules  of  right  action  binding  on  the  conscience 
of  the  indimdual  subject,  to  a  greater  degree  than  has  been 
recognized  in  any  modern  system.  This  view  would  appear  to 
be  supported  by  the  meaning  given  to  such  words  as  justitia, 
ji(risj)nulentia,  and  jus,  in  the  exposition  of  the  basis  of  legal 
science  given  by  many  jurists  of  the  later  imperial  period. 
But  a  particular  examination  of  a  very  few  of  the  specific  topics 
of  Eoman  jurisprudence  would  show  that  the  law  of  judicial 
tribunals  was  confined  with  them,  as  with  the  moderns,  to  the 
enforcement  only  of  those  duties  as  legal  which  the  supreme 
power  had  made  such  by  positive  enactment,  or  through  definite 
juridical  recognition  and  application  of  natural  reason,  and  had 
accompanied  by  a  remedial  sanction." 

In  the  view  of  resting  the  foundation  of  law  on  a  moral 
criterion,  or  of  expressing  its  jural  character,  the  Institutes  of 
Justinian,  Lib.  I.,  tit.  1,  §  1,  give  to  the  tei"m  ju7'isj)T'udence  a 
more  extended  signification  than  that  allowed  to  it  by  limiting 
the  meaning  of  law  to  the  sense  herein  before  given  as  the  ordi- 
nary practical  meaning  of  the  word  {ante,  §  17).  Jurisj^ruden- 
tia   est   omnium  rerum   humanarum   atque   divinarum  notitia 

depends  upon  judicial  precedent — the  fact  that  it  has  been  recognized  as  an  exposition 
of  those  principles  which  actually  do  prevail  among  all  nations.  But  the  theory  of 
Domat  on  this  point  is  very  commonly  held  by  English  writers,  in  justifying  a  reference 
to  the  Roman  law.  See  Browne:  Civ.  <fe  Adm.  Law,  p.  4.  Bowyer:  Univ.  Pub. Law, 
passim. 

'  Hale's  Hist.  Com.  L.,  p.  24.  Holt,  C.  J.,  in  12  Modem  R.,  482.  3  Kent's 
Comm.,  p.  490.  'NVheaton's  El.  Int.  Law,  Introd.,  p.  22.  Wheiiton's  Law  of  Nations, 
p.  3L  Duponceau  :  on  Jurisdiction,  p.  86.  Reddie's  Treatises,  passim.  Dr.  Duck's 
Treatise  on  the  Use  and  Authority  of  the  Civil  Law  in  the  Kingdom  of  England. 
Robertson's  Hist.  Charles  V.,  vol.  L,  note,  xxv.,  BB. 

"  Mackeldey's  Comp.,  §112.  Tr.  by  Kaulmann.  "Law  was  considered  by  the 
Romans  as  primarily  founded  on  morality,  and  on  a  voluntary  respect  for  all  that  was 
good  and  noble.  In  their  view,  compulsion  was  no  essential  element  of  a  law,"  &c. 
The  translator's  note,  to  this  section,  points  out  the  error  ol'  this  statement. 


146  JUS — IN    TWO    SENSES. 

justi  atque  injusti  scientia;  a  definition  nearer  to  the  modem 
conception  of  moral  philosophy.  Justitia  is  used  in  the  sense 
of  the  English  words  uprightness,  honesty,  integrity  ;  justitia 
est  constans  et  perpetua  voluntas  jus  suum  cuique  tribuendi ; 
jtis  here  having  its  sense  of  a  right^  while  immediately  follow- 
ing^^.s  is  used  in  the  sense  of  law  as  a  imle^  juris  prcecepta 
hsec  sunt,  honeste  vivere,  alterum  non  laidere,  suuni  cuique 
tribuere  ;  without  indicating  the  authority  which  is  to  determine 
what  is  honestuni,  what  it  is  alterum  Imdcre^  and  what  is  suum 
cuique^  or  the  right  of  every  man.     ' 

§  150.  In  the  analysis  of  the  law  which  immediately  follows 
these  definitions,  the  first  distinction  is  made  according  to  the 

'  By  some  of  the  German  jurists,  jus — taken  in  the  sense  of  a  rule  of  action, — jus 
est  norma  agendi — is  said  to  have  its  ohjectxre  meaniiifr,  and  when  used  with  the  signi- 
fication of  a  rijrht, — -jus  est  facultas  agendi — it  is' said  to  have  its  subjectii-e  sense.  Vide 
Mackeldey's  Comp.,  Introd.,  g  2.     Savigny :  Heut.  R.  R.,  §  5. 

It  may  he  douhted  whether  this  designation  of  the  different  uses  of  the  word  jits — 
founded  on  a  well  knowTi  Kantian  distinction,  is  even  philosophically  correct;  because 
either  a  law  or  a  rigid — the  effect  of  a  law — may  he  considered  both  objectively  and 
subjectively.  Aud  it  is  here  important  to  notice  that,  in  jurisprudence,  both  are  used 
objectively  only,  that  is,  each  is  regarded  as  having  an  existence  independent  of  the 
moral  sense  of  the  concipient  person. 

The  subjective  apprehension  of  jus,  in  the  sense  either  of  a  rule  or  of  a  right,  pro- 
perly occurs  only  in  ethics,  where  the  law  or  the  right  is  conceived  of  as  something 
that  is  because  it  ontj/it  to  be  :  that  is,  in  fact,  as  something  which  results  from  the 
moral  nature  of  the  concipient :  whereas,  in  jurisprudence,  ju« — a  law,  and  jus — a 
right,  are  conceived  of  as  the  result  of  the  will  of  an  assumed  legislator. 

Renth;im,  Introd.  Pr.  Morals  and  Legisl.,  ch.  XVII.,  23,  note,  employs  the  terras 
abstract  and  concrete  to  designate  the  subjective  and  objective  conceptions  of  jus  in  the 
sense  of  the  rule — norma  agendi.  "  In  most  of  the  European  languages  there  are  two 
different  words  for  distinguishing  the  abstract  and  the  concrete  sen.«es  of  the  wrrd  law; 
which  words  are  so  wide  asunder  as  not  even  to  have  any  etymological  affinity.  In 
Latin,  for  example,  there  is  lex  for  the  concrete  sense,  jus  for  the  ab-tract :  in  Italian, 
ler/ge  and  diri/to :  in  P'rench,  /oi  and  droit:  in  Spanish,  lei/ and  dereeho  :  in  German, 
Gesetz  and  Recht.     The  English  is  at  present  destitute  of  this  advantage. 

"In  the  Anglo-Saxon,  besides  luge,  and  several  other  words  for  the  concrete  sense, 
there  was  the  word  righi,  answering  to  the  German  Richt,  for  the  abstract ;  as  may  be 
seen  in  the  compound  foU-right  and  in  other  instances.  But  the  word  rigid  ha\'ing 
long  ago  lo.st  this  sense,  the  modem  English  no  longer  pos.<!esses  this  advantage." 

But  the  terms  Recht,  diritto,  droit,  Sec,  are  also  used,  in  jurisprudence  proper,  in  the 
sense  of  facultas  agendi,  the  sense  of  the  English  term  a  right ;  and  this  is  a  concrete 
sense  as  much  as  that  of  Gesetz,  legge,  loi,  &c.  In  English,  the  substantive  word  a  right 
is  used  only  in  the  sense  of  facultas  agendi,  while  the  words  Recht,  diritto,  droit,  &c., 
signify,  in  their  respective  langiiages,  not  only  this  but  iilso  a  rule  which  is  right  in  the 
abstract,  that  is,  the  rule  of  natural  equity  :  which  may,  or  may  not,  be  identified 
with  lex — the  positive  law.  Comp.  Dig.  Lib,  I.,  tit.  1,  §  11:  Pauius:  libro  XIV.,  ad 
Sabinum.  Jus  pluribus  niodis  dicitur.  Uno  modo,  quum  id  quod  semper  sequum 
ac  bonum  est,  jus  dicitur,  ut  est  jus  naturale.  But,  in  the  jurisprudence  of  every  na- 
tion, positive  law  is  a  jural  rule,  (leges  juris) ;  and  the  Recht  and  Gesetz,  loi  and 
droit,  &c.,  are  presumed  to  be  identified.  And  see  Austin  :  Prov.  of  .Turisp.,  p.  305, 
note,  p.  308,  note,  in  respect  to  this  use  of  the  words  jm  and  Recht. 


JUS PUBLICUM  ;    PKIVATDM.  147 

object  or  relations  of  persons  on  which  a  law  operates.  Hujus 
studii  duEC  sunt  positiones,  publicum  et  privatum.  Publicum 
jus  est,  quod  ad  statum  rei  Komanse  spectat,  privatum,  quod  ad 
singulorum  utilitatem,'  Here  'piiblicum  jus  appears  to  be  equiv- 
alent to  what  would  now  be  called  the  public  law  of  some  one 
state,  public  municipal  law,  or  constitutional  law  ;  or,  if  a  more 
extended  meaning  is  to  be  attributed  to  it,  it  may  be  taken  to 
correspond  with  what  the  moderns  denominate  political  law,  or 
the  science  of  political  ethics,  and  that  only  with  reference  to 
the  relations  of  a  single  state."  In  the  mind  of  the  Koman  law- 
giver, indeed,  quod  ad  statum  rei  Romanse  spectat,  compre- 
liended  the  laws  of  the  empire  of  the  world,  and,  so  far  as  com- 
patible with  the  admission  of  supremacy  in  that  single  state  or 
nation,  the  idea  of  international  law  in  the  modern  sense.* 

§  151.  The  analysis  of  private  law,  which  next  follows,  is 
founded  upon  the  nature  of  its  origin.  Dicendum  est  igitur  de 
jure  privato,  quod  tripartitum  est:  collectum  est  enim  ex  natu- 
ralibus  prteceptis,  ant  gentium,  aut  civilibus.  From  the  imme- 
diate sequence  of  the  definition  of  natural  law  as  being  that 
quod  natura  docuit,  it  may  be  taken  to  be  identical  with  "  natu- 
ral precepts."  But  this  natural  law,  as  there  defined,  can  hardly 
be  considered  a  part  of  public  or  private  law  in  the  primary 
meaning  of  the  word  as  a  rule  of  action.  The  definition  is  only 
a  recognition  of  a  state  of  things  independent  of  human  action, 
or  a  law  in  the  secondary  sense  ;  and  includes  not  only  the  na- 
ture of  man  but  of  all  animated  existences.  Jus  naturale  est 
quod  natura  omnia  animalia  docuit.  Nam  jus  istud  non 
humani  generis  proprium  est,  sed  omnium  animalium,  quae  in 
coelo,  quae  in  terra,  quae    in  mari  nascuntur.     Ilinc  descendit 

'  Viunius :  Comment.  Lugd.  Batav.  1726,  B.  1,  tit  1,  not.  a  Heiuecc.  "  Quod 
ad  statum  Bom.  etc.  Quod  a  utilitate  publicuin  est,  non  quod  sola  auctoritate ;  est 
enim  hsec  divisio  a  fine  sumpta,  non  a  causa  efiiciente.  Singulorum  utilitatem.  Quod 
privatim  ad  cujusque  civis  rem  pertinet  familiarem.  Quanquam  et  hoc  per  conse- 
quentiam  publice,  et  illud  privatim,  utile." 

'  Mackeldey's  Compendium,  p.  12r>,  note  by  Kaufmann.  Compare  ante,  §  25  and 
not«6. 

*  Virgil  :  ^neid,  B.  VI.  1.  851. 

"  Tu  regere  imperio  populos,  Eomane,  memento." 

Gravina;   de  Rom.  Imp.  §§1.  2,    and   Gravina :   Origines  L.  II.  §  10.     Huber. 
Conf.  Leg.,  Lib.  L,  tit.  3;  Lib.  II.  tit.  3.  §  1.     "Injure  Romano  non  est  mirum  nihil 
hao  de  re  exstare,  cum  populi  Rornani  per  omnes  orbis  partes  difFusum  et  equabili  jure 
giibcrnatum  imperium  conflictui  diversarum  legimi  non  teque  potuerit  esse  subjectum. 
VVheaton  :  Int.  L.  p.  20. 


148  JUS   GENTIUM. 

maris  atqne  fceminse  conjunctio,  quam  nos  matriraonium  appel- 
lamiis  ;  hinc  liberonini  procreatio  ;  liinc  educatio  ;  videmus 
etenim  cetera  quoque  animalia  istius  juris  peritia  censeri. 

§  152.  The  distinction  next  drawn  between  jus  civile  and 
jus  gentium,  introduces  a  law  of  nations,  as  a  source  of  the  pri- 
vate law,  in  a  sense  more  nearly  corresponding  with  the  modern 
idea  attached  to  tlie  terms  laio  of  nature  and  natural  law,  wlien 
employed  in  jurisprudence,  and  with  'universal  law'  as  it  was 
defined  in  the  tirst  and  second  chapters.  Jus  autem  civile  vel  gen- 
tium ita  dividitur ;  omnes  populi,  qui  legibus  et  moribus  regun- 
tur,  partim  sue  proprio,  partira  communi  omnium  hominum  jure 
utuntur.  Kam  quod  quisque  populus  ipse  sibi  jus  constituit, 
ipsius  civitatis  proprium  est  vocaturque  jus  civile,  quasi  jus 
proprium  ipsius  civitatis.  Quod  vero  naturalis  ratio  inter 
omnes  homines  constituit,  id  apud  omnes  populos  perseque 
custoditur,  vocaturque  jus  gentium,  quasi  quo  jure  omnes  gen- 
tes  utantur.  This  law  of  nations,  the  offspring  of  naturalis  ratio, 
is  afterwards  made  to  overrule  the  natural  law,  jus  naturale,  in 
the  origin  of  slavery  ;  though  that  natural  law,  if  implied -in 
'  natural  precepts ' — naturalibus  prseceptis,  is  before  made  a 
source  of  private  law — the  jus  privatum.'     Tlie  definition  of  jus 

'  Mackeldey's  Compeudium,  p.  126;  Kaufmann's  note.  Savigny:  Heutige  Rom. 
R.  Vol.  I.  Appendix  I.  i  Tr.)  "  The  Roman  jurists  notice  two  divisions  of  law,  founded 
upon  the  jjeneral  nature  of  its  origin.  One  is  a  division  into  two  parts:  viz.,  1,  Law 
as  it  existed  for  the  Romans  only,  cii'ile  ;  2,  Law  as  existing  for  all  nations,  gentium 
or  nnhtrale.  The  other  is  a  division  into  three  parts:  viz.,  1.,  Law  existing  for  the 
Romans  only,  civile  ;  or  2,  existing  for  all  nations,  gentium  ;  or  3,  existing  both  for  all 
mankind  and  for  the  brute  creation,  naturale. 

"  I  not  only  consider  the  first  of  these  divisions  the  only  correct  one,  but  I  also  assert 
that  it  is  even  to  be  regarded  as  the  ruling  division  among  the  Roman  jurists,  and  that 
the  other  can  only  be  regarded  as  an  attempt  at  an  extension  of  the  subject  which 
never  received  general  recognition  ;  nor  ever  had  any  influence  in  detennining  partic- 
ular questions  of  law.  The  division  into  two  parts  is  most  carefully  carried  out  by 
Gains,  in  several  instances.  He  places  this  division  at  the  introduction  of  his  work 
without  the  recognition  of  a  third  part.  Jus  gentium  is  with  him  the  older  portion, 
as  ancient  as  the  human  race.  It  arises  from  the  naturalis  ratio  of  all  men ;  hence 
he  elsewhere  names  it  jus  naturale  ;  as  in  referring  the  natural  acquisition  of  property 
by  voluntary  exchange,  in  one  place  to  jus  naturale,  and  in  another  to  naturalis  ratio. 
This  division  in  two  parts  is  found  also  with  Modestin,  Paulus,  Marcian,  Florentinns 
and  Licinius  Rufinus,  —  *  *  Xhe  division  into  three  parts  is  most  distinctly  made 
by  Ulpian.  and  alter  him  by  Tryphonius  and  Hermogenian.  It  rests  on  the  following 
theory.  That  there  was  a  time  wherein  men  knew  only  such  relations  to  each  other 
as  were  common  to  them  and  the  brute  creation  ;  those  of  the  sexes,  generation,  and 
education.  Thereafter  followed  a  second  period  of  time,  wherein  states  arose  ;  slavery, 
private  property  and  obligations  were  introduced :  and  this  in  like  manner  among  men 
wherever  found.     Lastly  arose  lav/  in  each   state  as  peculiar  to  itself;  partly  by  the 


JTJ8    PUBLICUM.  149 

civile,  in  this  place,  is  derived  from  its  origin,  or  the  source  to 
which  in  judicial  apprehension  it  is  referred  for  its  existence, 
that  is,  the  will  of  some  one  state  or  nation,  and  it  is  therefore 
also  here  called  '  its  own,' — proprium.  After  this  definition  the 
Roman  people  is  said  to  use  not  onlj  its  own  law,  proprium, 
but  also  the  principles  of  this  law  of  nations,  as  the  dictates  of  ■ 
natural  reason,  without  further  mention  of  '  natural  precepts ' — 
Et  populus  itaque  Romanus  j)artim  suo  proprio,  partim  com- 
muni  omnium  hominum  jure  utitur.  And  in  most  instances 
wherein  the  term  jus  civile  is  used  in  the  Roman  law  it  means 
all  that  the  Roman  state  uses,  utitur,  or  enforces  as  a  rule  of 
action  ;  that  is,  it  includes  both  the^M^  civile,  or^  jproprium,  and 
the  jus  gentiuin  as  here  defined  ;  and  is  equivalent  to  the  term 
'  municipal  law '  as  employed  by  Blackstone,  or  to  the  term 
*  national  law '  according  to  Bentham's  terminology. 

§  153.  The  jus  publicum,  whethea*  exclusively  relating  to 
internal,  or  to  external  relations  also,  must  have  had  the  same 
origin  in  the  will  of  the  state,  or  in  the  rules  of  '  natural  reason,' 
being  also  a  j^art  of  the  law  used  by  the  Roman  people.  Inter- 
national law,  so  far  as  it  existed,  and  whether  included  under 
that  here  called  j9wJ^*c  law,  or  not,  is  implied  to  rest  also  on  the 
law  of  nations  or  principles  commonly  received  among  all  man- 
kind, by  the  description  of  the  origin  of  slavery,  which  is  justi- 
fied on  those  principles  while  it  is  ascribed  to  wars,  which  are 
necessarily  international,  and  are  also  justified  by  the  same 
'  law  of  nations.'  Jus  autem  gentium  omni  humano  generi 
commune  est.  Nam  usu  exigente  et  humanis  neccssitatibus 
gentes  humanse  qusedam  (jura)  sibi  constituerunt ;  bella  etenim 
orta  sunt  et  captivitates  secutse  sunt  et  servitutes  ;  by  which  are 
meant,  not  private  wars  or  piracies,'  but  those  appeals  to  force 

modification  of  those  general  institutions  by  particular  circumstances,  partly  by  the 
addition  of  new  institutions  or  rules.  *  *  *  On  this  particular  point  the  Institutes 
of  Justinian  take  a  veiy  inconsistent  position.  The  text  of  Ulpian  is  first  used,  giving 
the  tripartite  division,  and  making  it  apply  to  the  origin  of  slavery.  Then  the  text 
of  Gains,  Marcian  or  Klorei:tinus  is  cither  followed  in  terms,  or  plainly  referred  to. 
One  passage  is  particularly  remarkable,  where  the  words  of  Gaius  are  used,  but  with 
the  express  addition  that  jus  nuturale  is  the  same  as  jus  gentium,  and  that  this  had 
already  before  been  so  stated;  §  11,  I.  de  div.  rer.  (2,  1.)  quarundam  cnini  rerum 
dominium  nanciscimur  jure  naturali  ;  quoil,  sicut  diximus,  appellatur  jus  gentium  ; 
quarundam  jure  civili.'     Compare  on  this  subject,  Austin,  Prov.  Jurisp.  1S8-190. 

'  Huberus,  de  Jure  Civitatis,  lib.  2.  c.  3.  §  8.     "  Quod  si  bellum  caret  solemnibus 


150  '  OBIGIN    OF    SLAVERY. 

which  the  natural  reason  of  mankind  has  hitherto  continued  to 
justify,  as  remedies  between  sovereign  states.  While  slaveiy  is 
thus  justified  as  being  accordant  with  natural  reason,  and  there- 
fore with  natural  law,  so  far  as  it  can  be  recognized  in  jurispru- 
dence, the  freedom  of  mankind  is  asserted  under  the  natural 
'  law,  in  the  sense  of  the  statement  of  a  condition  of  things  ante- 
rior to  the  authority  of  nations  or  of  society  :  in  which  sense  of 
the  words  all  men  would  be  taken  to  be  naturally  free  from 
any  positive  law,  that  is,  from  all  those  rules  of  action  which 
are  enforced  by  society,  or  by  states.  The  sentence  last  quoted 
from  the  Institutes  is  thus  continued.  Bella  etenim  orta  sunt 
et  captivitates  secutae  et  servitutes,  quae  sunt  naturali  juri 
contrarijB.  Jure  enim  naturali  omnes  homines  ab  initio  liberi 
nascebantur ;  and  in  Title  3,  §§  2,  3,  4, — Servitus  autem  est  con- 
stitutio  juris  gentium,  qua  quis  dominio  alieno  contra  naturam 
subjicitur.  Servi  autem  ex  eo  appellati  sunt,  quod  Imj^eratores 
captivos  vendere  ac  per  hoc  servare  nee  occidere  solent ;  qui 
etiam  mancipia  dicti  sunt,  eo  quod  ab  hostibus  mami  capi- 
untur.  *  *  *  fiunt  [servi]  jure  gentium,  id  est  captivitate. 
And  in  Title  5,  §  1,  on  manumission,  it  is  said,  Quae  res  a  jure 
gentium  originem  sumsit;  utpote  quum  jure  naturali  omnes 
liberi  nascerentur ;  nee  nota  esset  manumissio,  quum  servitus 
esset  incognita.  Sed  posteaquam  jure  gentium  servitus  invasit, 
secutum  est  beneficium  manumissionis.  Seeming  to  mean,  that 
though  in  a  primaeval  state,  or  a  state  of  nature  as  opposed  to  a 
state  of  society,  or  as  originally  created,  men  must  be  consid- 
ered equally  free,  yet,  in  consequence  of  their  natural  passions 
and  infirmities,  a  necessary  condition  of  things  has  arisen  in  the 
social  state,  a  usus  exigens  et  Immana  necessitas,  from  which 
natural  reason  justifies  slavery.*  This  view  of  the  origin  of 
slavery  the  Romans  held  in  common  with  all  the  nations  of 

juris  gentium   requisitis,  non  sunt  capti  jure  servi,  proinde  nee  ejusmodi  tacita  oritur 
obligatio  ;  ut  in  his  qui  piratico  aut  latrocinio  barbarorum  capiuntur.'' 

'  In  order  to  reconcile  the  language  of  the  Institutes,  some  civilians  distinguish  a 
jus  gent'mm  primfPfiim  and  a  jus  gentium  secondariiim.  v.  Vinnius:  Comm.  Lib  I.  Tit 
2,  'd,  on  this  title  of  the  Institutes.  Merliu  :  Repertoire  de  Jurisprudence,  Tom.  V., 
p.  291,  speaks  of  le  droit  primitif  des  gens,  and  le  droit  des  gens  secondaire.  And 
St.  Thomas  Aquinas  makes  a  similar  discrimination  of  a  secondary  law  of  nature 
identical  with  the  lair  of  nations  ;  as  quoted  in  Bishop  England's  Letter  II.,  giving  the 
earlier  Christian  authorities  that  slavery  is  a  legitimate  consequence  of  sia 


ORIGIN   OF   SLAVERY.  151 

antiquity.  It  was  in  fact  a  principle  quod  inter  omnes  populos 
pei'ipque  custoditur,  a  maxim  of  tlie  law  of  natural  reason,  or  of 
'  universal  law' as  then  understood,  that  slavery  might  "right- 
fully exist  as  a  consequence  of  captivity  in  war  : '  and  being  a 
consequence  of  public  wars,  sanctioned  by  the  rules  of  action 
between  nations,  it  was  at  that  time  a  principle  of  the  interna- 
tional law,  so  far  as  any  such  international  law  could  be  said  to 
exist." 

§  154.  The  relation  thus  originating  in  war  and  under  inter-  ^ 
national  law  was,  among  the  ancients,  universally  taken  up  and 
sustained  by  the  internal  or  municipal  law  of  each  nation,  jus 
civile.'  And  under  the  sanction  of  nmnicipal  law  it  was  also 
made  a  consequence  of  other  circumstances  than  captivity  in 
war ;  as  of  birth ;  since  the  child  of  a  slave  mother  became  also 
a  slave  ;  and  also  by  the  voluntary  act  of  the  person  enslaved  ; 
Inst.  Lib.  I.  tit.  3,  §  4 :  Servi  aut  nascuntur,  aut  fiunt ;  nascun- 
tur  ex  ancillis  nostris ;  fiunt  ex  jure  gentium,  id  est  ex  captivitate, 
aut  jure  civili,  quum  liber  homo  major  viginti  annis  ad  pretium 
participandum  sese  venundari  passus  est.  In  servorum  con- 
ditione  nulla  est  differentia.  Here  the  origin  of  slavery  by  vol-  - 
untary  sale  is  attributed  to  jus  civile,  which  here  corresponds 
to  municipal  or  internal  law.  The  inheritance  of  slavery  is  not 
here  attributed  either  to  the  jus  civile  or  to  the  law  of  nations, 
it  is  merely  stated  as  a  recognized  principle ;  but  from  its  ad- 

'  Xenophon  :  Cyrop.  L.  vii.  c.  5,  73. 

■•'  War  and  peace  being  rudely  definable  as  contraries,  war  was  the  normal  condi- 
tion of  international  intercourse  between  nations  not  equally  civilized,  that  is,  not 
equally  recognizing  a  rule  of  peaceful  intercourse  ;  and  slavery  might  originate  under 
such  a  condition  of  hostility,  though  not  one  of  open  war.  Thus,  Dig.  L.  49,  tit.  15, 
§  5,  2.  Nam  si  cum  gt-iite  aliqua  neque  amicitiam,  neque  hospitium,  neque  foedus  ami- 
citiae  causa  factum  hahemus,  hi  hostes  quidem  non  sunt ;  quod  autera  ex  nostro  ad 
eos  perv*iit,  illorum  fit,  et  liber  homo  noster,  ab  lis  captus,  servus  fit,  et  eorum. 
Idemque  est,  si  ab  illi.s  ad  nos  aliquid  perveniat. 

°  Jus  cirile,  in  a  sense  relating  to  its  extent,  national  law,  including  jus  gentium — 
not  opposed  to  it,  in  the  sense  of  jua  pi-opriwn. 

Quintus  Curtius :  Lib.  7,  c.  8  :  "  Inter  dominum  et  servum  nulla  amicitia  est,  etiara 
in  pace  belli  tamen  jura  servantur."  The  Jura  were  the  same,  only  as  the  rights  of  the 
master  were  always  founded  on  jus  gentium.  The  municipal  law  did  not  recognize 
any  incongmity  between  the  relation  of  master  and  slave  and  a  peaceful  condition  of 
society. 

A  slave  condition  was  also  sometimes  made  the  consequence  of  desertion  from  mil- 
itary duty,  or  crime  ;  freed  men  for  ingratitude  towards  patrons,  and  women  for  inter- 
course with  slaves  were  liable  to  loss  of  freedom.  Hune's  Darstellung  iiber  Sclaven- 
handel  (Gtittingcn,  1820)  vol.  i.  p.  95  :  cites  Waldcck  ;  c.  1.  §  63  n.  a,    Heiuec.  c.  i.  3  83. 


152  CONSTITUTIO   JURIS   GENTIUM. 

mitted  universality  it  was  probably  considered  a  jDrinciple  of 
the  law  of  natimis^  constitutio  juris  gentium.  In  Tit.  8,  from 
the  universal  prevalence  of  the  idea  of  absolute  dominion  in  the 
master  over  the  slave,  and  of  the  slave's  incapacity  to  acquire 
any  thing  as  property,  distinct  from  the  i)roperty  of  the  master, 
it  is  argued  that  that  property  and  that  disability  rest  upon  the 
same  foundation  as  slavery  from  captivity.  In  potestate  itaque 
dominorum  sunt  servi.  Quse  quidem  potestas  juris  gentium  est. 
I^am  apud  onmes  perieque  gentes  animadvertere  possumus,  dom- 
inis  in  servos  vitae  necisque  potestatcm  esse,  et  quodcunque  per 
servum  acquiritur,  id  domino  acquiritur;  and  hence  it  might 
be  inferred  that,  as  the  dominion  which  prevented  the  slave 
from  having  the  rights  of  a  legal  person,  even  in  respect  to  his 
own  offspring,  was  founded  on  the  law  of  nations,  the  results  of 
that  dominion  had  the  same  legal  character.* 

§  155.  The  force  to  be  attached  to  tlie  expression,  constitutio 
juris  gentium,  must  be  gathered  from  the  comparison  of  the 
prevalence  and  judicial  recognition  among  all  nations  of  other 
relations  which  are  ascribed  to  this  law.  The  Institutes  refer  to 
the  same  jus  gentium,  the  origin  of  the  various  forms  in  which 
property  is  held  and  transferred,  as  being  equally  recognized 
among  all  nations;  Lib.  I.  Tit.  2,  §  2.  Et  ex  hoc  jure  gentium 
omnes  paene  contractus  introducti  sunt,  ut  emtio,  venditio,  lo- 
catio,  conductio,  societas,  depositum,  mutuum  et  alii  innumera- 
biles.  And  Lib.  IL  Tit.  1,  §4:  Riparum  quoque  usus  pub- 
licus  est  jure  gentium,  sicut  ipsius  fluminis.  And  §  5  :  Littorura 
quoque  usus  publicus  juris  gentium  est,  sicut  et  ipsius  maris  ; 
&c.^     By  ascril)ing  the  riglit  of  the  master  and  the  incapacity 

*  Walileck's  Inst.  L.  I.  tit.  3.  "  Ex  jtiris  principiis,  foetn.«,  tamquam  accessio  ventria 
ad  doniiuum  vcntris  pertinet."     Heinecc,  J.  Nat.  et  Gen.  L.  I.,  §  2.52,  II.  §  81. 

'  The  whole  of  the  first  five  titles  of  this  second  book  of  the  Institutes  are  expressly 
called  jus  gentium,  as  contrasted  with  jus  civile.     List.  L.  ii.  Tit  .'>,  1;  C. 

The  common  right  of  using  the  sea  shore  and  the  sea,  which  is  here  spoken  of,  is 
the  right  of  private  iudiviiluals  as  against  other  private  persons — a  right  luider  private 
municipal  law  (conip.  Inst.  L.  i.  tit.  1,  §  1).  It  is  not  that  freedom  of  the  seas  to  all 
nations  which  makes  a  prominent  topic  of  modern  public  international  law.  It  may  be 
noti'-ed,  however,  in  this  connection,  to  avoid  the  confusion  which  has  attended  the  use 
of  the  term,  that  the  jus  gentium  of  the  Roman  lawyers  was  exhibited  in  the  applica- 
tion of  human  reason  to  the  relations  of  public  as  well  as  private  persons,  and  might 
thus  form  a  part  of  what  is  now  called  public  international  law,  jus  inter  gentes.  Thus 
Dig.  Lib.  i.  tit.  1,  g  .'> :  Hermogenianus,  Libro  i.  juris  epitomanim.  Ex  hoc  jure  Pen- 
tium introducta  bella,  discreta;  gentes,  rogiia  condita,  domiuia  distincta,  afris  termini 
positi,  a^dificia  collocata,  commercium,  emtiones,  venditioues,  locationes,  conductiones, 


NATURE   OF    SLAVERY.  153 

of  the  slave  to  the  same  hiw  of  nations,  without  reference  to  the 
origin  of  the  relation,  (in  servorum  conditione  nulla  est  cliifer- 
entia)  it  seems  to  be  considered  a  condition  or  relation  which 
should  he  everywhere  recognized,  and  maintained  of  course  in 
every  municipal  or  international  jurisdiction. 

§  156.  The  nature  of  this  relation  was  the  holding  of  men  as    -^ 
property,  and  therefore  as  things,  not  jjersons:  and  therefore  in     j^ 
the  Listitutcs,  Lib.  11.  title  1,  treating  of  the  nature  of  things  as 
opposed  to  persons,  de  rerum  divisione  et  qualitate,  in  §  17  it  is 
said:  Item  ea  quae  ex  hostibus  capiraus,  jure  gentium  statim 
nostra  Hunt ;  adeo  quidem  ut  et  liberi  homines  in  servitutem  nos- 
tram  deducantur.     For,  though  slaves,  servi,  are  distinguished,  I 
as  natural  persons,  from  freemen,  liberi,  in  Titles  3  &  8,  their  I 
condition  is  also  frequently  spoken  of,  by  the  civil  jurists,  as  dis- 
tinguishing them  as  legal  things  from  legal  persons ;  a  legal 
person  being  a  natural  person  having  rights,  and  a  slave  having 
none,  in  the  view  of  the  law,  any  more  than  other  objects  of, 
possession.'     As  is  shown  in  Inst.  L.  I.  tit.  8,  §  1,  the  power  of 
the  master  was  for  life  and  death,  in  theory  ;  and  often  illus- 
trated in  practice,  as  appears  from  history  and  literature.''     If  the 
slave  was  considered  entitled  to  any  rights  as  a  human  being, 

oblijrationes  institutte,  exceptis  quibusdam  quse  a  jure  civili  introductae  sunt.  From 
which  it  appears  that  the  jus  gentium  of  the  Romans  was  either  pulilic  or  private  law 
according  to  the  character  of  the  persons  or  relations  to  which  it  was  applied.  Mr. 
Wheaton  in  his  "  Law  of  Nations,"  pp.  26-20,  apparently  assuming  that  the  modems 
would  not  have  denominated  public  international  law  "  the  law  of  nations,"  if  the  Ro- 
mans had  not  before  called  the  same  thing  jus  gentium,  insists  that  by  jus  gentium  the 
Romans  intended  that  part  of  their  civil  law  which  they  used  as  public  law  in  reference 
to  other  nations.  But  in  fact,  as  appears  by  the  above  citation  from  the  Digest,  it  was 
a  universal  jurisprudence,  which  the  judicial  oflBcer  referred  to  as  an  indication  of  natu- 
ral reason  in  all  matters  affecting  private  persons.  Mr.  Wheaton,  by  asserting  that 
the  private  law  which  the  Romans  knew  as  jus  gentium  was  not  known  by  the  reco"- 
nition  of  its  historical  prevalence,  but  was  simply  that  part  of  their  own  law  which  the 
Romans  thought  naturale,  comes  to  the  conclusion  that  jus  gentium  is  immutable.  It 
is  true  that  the  Romans  knew  no  jus  gentium  that  was  not  already  part  and  parcel  of 
their  own  national  law — jus  civile,  (see  \\'l;eaton"s  Intern.  Law,  p.  27.  citing  Savigny 
and  Waechter,)  and  every  tribunal  recognizing  a  jus  gentium,  or  universal  jurispru- 
dence, must  assume  that  it  is  included  in  the  law  of  the  land.  How  this  may  be,  has 
been  shown  in  the  second  chapter. 

'  Muhlcubruch  ;  Pandectarum  Doctrina,  p.  195.  "  Familia  appellatio  non  ad  per- 
sonas  solum  refertur,  verum  etiam  ad  res,  adeoque  ad  hominuin,  qui  iiistar  habiti  sunt 
rerum,  i.  e.  servorum  quoddam  corpus."  Kaufmann's  Mackeldey,  p.  127;  editor's 
note  :  "  The  Romans  made  a  distinction  betweem  homo  and  persona  ;  because  they  re- 
garded slaves  not  as  subjects  of  rights,  but  as  objects  of  rights,  in  the  same  mamier  as 
things."     And  see  Taylor's  El.  Civ.  Law,  p.  429. 

'■'  Juvenal  Sat.  vL  1.  219. 


154  PREVALENCE   OF  THE   DOCTEINE. 

the  support  of  those  rights  was  left  to  the  influence  of  motives 
of  hunumity,  and  not  enforced  by  any  rule  prescribed  by  the 
state,  i)revi<)usly  to  tlie  constitution  of  Antoninus  referred  to  in 
the  second  section  of  the  last-mentioned  Title.  Though  in  cases 
of  extreme  severity  the  supreme  power  might  occasionally  have 
interfered  ex  2'>ost  factOy  to  transfer  the  slave  to  another  nuister, 
Avithout  establishing  any  general  recognition  of  his  legal  per- 
sonality :  as  in  the  case  of  the  slaves  of  Julius  Sabinus,  spoken 
of  in  the  same  Title  :  and  this  extraordinary  intervention  seems 
to  have  acquired  the  force  of  a  general  law.' 

§  157.  Tliis  attribution  of  the  condition  of  slavery  to  the  jus 
gentium,  as  contrasted  with  their  jus  civile,  which  was  thus 
made  by  the  Koman  jurists,  was  in  perfect  harmony  with  the 
juridical  action  of  all  other  nations  of  antiquity.'  For  not  only 
had  that  condition  been  constantly  existing  among  all  nations 
from  the  earliest  historical  times,  but  it  was  nowhere  regarded 
as  a  relation  of  a  local  character,  or  one  specially  adapted  to 
local  circumstances  ;  this  is  proved  by  the  fact  that  the  condi- 
tion was  recognized  in  private  international  law  so  far  as  it 
could  be  said  to  exist ;  the  relation  between  the  master  and  the 
slave  being  maintained  not  only  in  the  jurisdiction  wherein  it 
began  its  legal  existence,  but  also  being  carried  out  or  realized 
in  other  jurisdictions  to  which  they  might  remove;  it  was  sus- 
tained equally  between  alien  as  between  native  subjects,  and 
property  in  slaves  was  recognized  in  the  transactions  of  com- 
merce between  persons  of  different  nations. 

It  is  in  view  of  this  character  of  slavery — that  of  being  a 
legal  condition,  universally  recognized  by  the  natural  reason  of 
mankind  manifested  in  civil  institutions,'  that,  before  describing 

*  Heineccius  :  Hist.  Jur.  Civ.  Lib.  i.  §  174.  Smith's  Diet.  Antlq.  Servm.  Other 
laws  for  tlie  protection  of  the  slave,  Lex  Petroni.i,  Dig.  L.  48,  tit.  8,  §  11  ;  L.  18,  tit. 
1,  §  42.  Cod.  iii.,  tit.  38,  3,  11.  Constitution  of  Claudius;  t'.  Suetonius,  Claud.  25. 
See  also  Savigny,  H.  R.  R.  Bd.  2,  p.  34. 

*  The  laws  of  Menu  recognized  several  kinds  of  slavery,  see  H.  St.  George  Tucker's 
Memorials  of  Indian  Government,  London,  18.')3,  p.  434.  In  ascribing  slavery  to  the 
law  of  nations  it  is  a  very  common  error  to  use  that  term  not  in  the  sense  of  universal 
jurisprudence — the  Roman  jus  gentium — but  in  the  modern  sense  of  public  interna- 
tional law,  and  to  give  the  custom  of  enslaving  prisoners  of  war,  in  illustration  :  as  if 
the  legal  condition  of  other  slaves  who  had  never  been  taken  in  war  were  not  equally  jure 
gentium  according  to  the  Roman  jurisprudence.  See  Mr.  Webster's  speech,  7th  March, 
1850 ;  Works,  vol.  v.  p.  329.     9  Georsiia  R.  581. 

^  Whatever  may  have  been  the  opinions  of  the  great  moralists  of  antiquity  as  to  the 


CHANGES    IN   JUS   GENTIUM.  155 

the  rights  of  persons,  the  Institutes  begin  Avith  the  simple  decla- 
ration, that  human  beings  are  either  freemen  or  slaves.  Lib.  I.  tit, 
3.  Sununa  igitur  divisio  de  jure  personarum  hsec  est,  quod 
omnes  ant  li])eri  aut  servi.^ 

§  158.  Whether  the  rules  historically  known  as  the  law  of 
jiaiions — jus  gentium,  which  judicial  tribunals  might  recognize 
as  a  criterion  of  natural  reason,  to  be  applied  in  international 
or  municipal  law,  have  continued  to  be  the  same  for  modern 
times  as  anciently,  is  a  question  of  fact  to  be  learned  from  the 
history  of  municipal  and  international  jurisprudence  among  all 
nations :  each  having  equal  right  to  judge  of  the  dictates  of  nat- 
ural reason  applied  to  the  conditions  of  human  existence,  and 
to  numifest  their  judgment  in  their  several  national  law  (applied 
either  as  internal  or  international  law  within  their  own  jurisdic- 
tions), and  in  the  formation  of  that  code  of  general  international 
intercourse  which  is,  in  an  imperfect  sense,  denominated  a  law, 
of  which  they  are  themselves  regarded  the  subjects.'' 

§  159.  It  must  be  remembered  at  the  same  time,  that,  in 
consequence  of  the  nature  and  mode  of  application  of  that  which 
is  thus  denominated  international  law,  or  law  of  nations  in  the 
sense  of  a  rule  of  which  nations  are  the  siibjects,  it  has  never 
changed  simultaneously  among  those  nations  professing  to  rec- 
ognize it:  and,  as  a  distinct  class  of  rules,  is  still  confined  to  its 
recognition  and  application  among  Christian  nations;  and  in  a 
more  limited  degree,  between  them  and  the  Asiatic  and  Mo- 
expediency,  propriety  or  ethical  fitness  of  the  relation  between  the  master  and  the  slave, 
it  is  certain  that  they  constantly  acknowledged  its  legality.  Aristotle  (Pol.,  L.  i.  c.  2) 
and  Plato  (Kep.,  L.  v.)  opposed  the  enslavement  of  Greeks  when  taken  prisoners  of  war 
by  other  Greeks.  But  the  former  regarded  slavery  as  a  relation  properly  existing  in 
e\  ery  civil  society ;  and  the  latter  seems  to  have  considered  it  a  necessary  evil.  If 
they  recoiled  from  the  idea  of  treating  a  lumian  being  as  a  chattel,  or  bmte  object  of 
the  action  of  others,  they  each  contemplated  the  existence  of  a  servile  class  as  a  neces- 
sary constituent  of  human  society.  See  Wallon  :  Hist,  de  I'Esclavage  dans  I'Antiquit^, 
lie  Par.  c.  11  ; — a  very  full  account  of  the  opinions  of  the  leading  minds  of  Greece  on 
this  point. 

S\hatever  may  have  beon  Cicero's  doctrine  about  the  foundations  of  civil  law  in 
natural  justice,  he  was  himself  an  owner  of  slaves,  and  called  on  his  friends  to  aid  him 
in  recovering  them  when  they  ran  awav.  See  Ciceronis  Epistolte  ad  P'ainiliares,  Lib. 
L  ep.  2,  §  4,  14,  Cic.  ad  Quintum  fratrem  ;  Lib.  v.  ep.  9,  §  2,  Vatiuius  ad  Cic,  ad 
fin  ;  Lib.  xiii.  ep.  77,  §  3,  Cic.  ad  P.  Sulpiciuni,  Imperatorem. 

'  The  name  of  the  Title  is  De  Statu  hominum  ,-  the  slave  was  homo,  and  not  per- 
sona ;  it  is  no  division  of  the  rights  of  persons  to  say  some  men  have  the  rights  of  per- 
sons and  some  have  not.     See  ante  §  44. 

"  Compare  §§  10,  19,  39. 


^-^ 


166  EFFECT   OF   CHRISTIANITY. 

hammedan  sovereignties ; '  the  intercourse  of  tliose  nations, 
recognizing  such  law,  with  others  not  knowing  it,  being  always 
presumed  to  be  regulated  by  that  part  of  the  international  law 
wliich  has  been  sometimes  called  '  the  natural  law  of  nations,' 
that  is,  by  general  principles  of  morals  applied  to  public  rela- 
tions :  the  application  being  professedl}'^  made  according  to  the 
moral  sense  of  the,  so  called,  civilized  nations,  assuming  a  supe- 
rior knowledge  of  the  dictates  of  enlightened  reason.' 

§  IGO.  During  the  later  period  of  the  Roman  empire  the 
ifl'usion  of  Christianity  gave  additional  force  to  ideas  of  hu- 
manity and  benevolence,  as  rules  of  duty  in  social  action  inde- 
pendent of  laws  enforced  by  the  state,  and  may  be  supposed  to 
have  moderated  the  severity  of  the  ancient  slavery,  both  as  the 
effect  of  international  wars  and  of  municipal  regulations :  at 
least  between  those  professing  a  faith  which  required  a  distinct 
recognition  of  individual  capacity  and  responsibility  in  all  nat- 
ural persons,  and  which,  by  constituting  all  its  adherents  into 
a  spiritual  commonwealth,  established  a  peculiar  equality  be- 
tween them  ;  comparing  them  to  members  of  a  family,  in  hav- 
ing such  a  bond  of  union.'  But  whatever  change  may  have 
taken  place  in  consequence  docs  not  appear  to  have  been  made 
by  any  systematic  interference  of  the  civil  power.  It  is  to  be 
remembered  that  the  code  of  Justinian,  though  digested  from 
ancient  laws,  was  the  code  of  a  Christian  state  and  sovereign  ;  * 

»  Heffter :  Europ.  Volkerr.  §  7. 

*  The  opinion  of  Dominic  De  Soto,  de  Justitia  et  de  Jure,  quoted  by  Mackintosh, 
Hist.  Eth.  Philos.  p.  110,  was,  that  there  can  be  no  diflference  between  Christians  and 
Pagans,  "  for  the  law  of  nations  is  equal  to  all  mankind."  It  is  doubtful  whether  in- 
ternational law  or  universal  (private)  law  was  intended  by  this  author;  but,  in  either 
sense,  it  is  not  a  correct  statement  of  what  the  law  of  nations  was  at  that  time,  as  his- 
torically known.  The  author,  as  many  writers  since  his  time  have  done,  confounded 
the  jus  gentium  with  his  own  idea  of  natural  justice. 

=•  Grotius  :  B.  et  P.,  Lib.  I.  c.  i.,  U,  15.  Huber,  de  Jure  Civitatis,  lib.  2,  ch.  3,  §  6. 
Lactantius,  L.  v.  Div.  Inst.  c.  16.  "Facile  inde  contigit  nedum  ut  Christiani  servos 
suos,  pra^sertim  Cliristianos,  veluti  fratrum  loco  haberent." 

■*  Prooeminm  to  Institutes  begins :  "  In  nomine  Domini  nostri  Jesu  Christi,  Impe- 
rator  Caesar,"  &c.  Constantine,  the  first  Christian  emperor,  died  A.  D.  33  Z.  Jus- 
tinian died  A,  D.  .o65. 

See  statement  of  Roman  legislation  respecting  slaves  from  time  of  Hadrian  to 
Theodosius  the  Great ;  Blair :  Slavery  among  the  Romans,  Ch.  IV.,  pp.  85-89,  and 
Wallon,  Hist,  de  I'Esclavage. 

Guadentius,  de  Justiniani  steculi  moribiis,  ch.  XIII.  (Meerman's  Thesaurus,  VoL 
in.  p.  G79),  thinks  it  most  probable  t'nat  captives  in  war,  even  if  Christian,  were  made 
slaves  under  Justiuian. 


PERSONALITY   RECOGNISED.  157 

and  tlie  early  church,  even  in  those  territories  wliere  it  held 
civil  as  woll  as  ecclesiastical  power,  did  not  abolish  the  relation, 
or  prohibit  its  future  ijiception  ;  but  appears  to  have  recognized 
it  as  lawful,  even  between  Christians,  though  gradually  modi- 
fying it,  by  using  its  spiritual  authority  to  enforce  the  dictates 
of  humanity,  and  to  cause  a  legal  recognition  of  the  personality 
of  the  slave,  and  of  a  capacity  in  him  for  some  rights  in  social 
and  family  relations,  though  still  in  a  state  of  servitude.  ^ 

§  161.  By  this  change  in  the  legal  character  of  his  condition 
the  slave  became  a  legal  member  of  the  civil  state,  as  distin- 
guished from  property  ;  and  his  servitude,  however  burden- 
some, lost  its  support  and  foundation  in  the  universal  law,  or 
law  of  nations^  by  losing  its  chattel  character,  and  derived  its 
support  from  the  law  peculiar  to  a  single  state,  for  the  slavery  / 
known  to  the  law  of  nations  was  the  simple  condition  of  chatte.  / 
slavery.^ 

§  162.  The  slavery  which  existed  among  the  heathen  na- 
tions of  northern  Europe,  from  the  earliest  times,  w' as  probably 

'  Walter ;  Lehrbuch  des  Kirchenrechts,  §  348.  Corpus  Jur.  Canonici.  Decreti, 
Pars.  i.  Distinctio  XV.  Gregorius  Papa  I.,  anno  596.  Roma  in  Campaniam.  In 
libertatem  vendicentur  ser\'i,  qui  ab  inlidelitate  ad  fidem  accedunt.  Distinctio  LIV. 
Servi  sine  dominorum  consensu  et  libertate  non  ordinentur.  A  letter  of  manumission 
by  the  same  prelate  of  some  of  his  own  slaves  is  cited,  Robertson's  Hist.  Charles  V., 
vol.  I.,  sect.  1,  note  XX,  in  which  he  speaks  of  slavery  as  contrary  to  an  original  or 
natural  state  of  freedom.  Bishop  England's  fifth  letter  cites  various  authorities.  See 
also  Wallon  ;  Hist,  de  I'Esclavage  dans  I'Antiquite,  Partie  III.  Blair :  Slavery  among 
the  Romans,  pp.  49-72.  Ward's  Hist,  of  Law  of  Nations,  vol.  II.  p.  27.  Gudelin,  de 
Jur.  Noviss.,  Lib.  I.  c.  4.  5.  Fletcher's  Studies  on  Slavery,  pp.  327-331;  and  the 
note  above  cited  in  Robertson's  Charles  V. 

The  history  of  the  early  Church  records  the  efforts  of  many  of  its  prelates  in  favor 
of  emancipation  ;  and  there  is  no  doubt  that  the  abolition  of  the  ancient  chattel 
slavery  is  mainly  attributable  to  its  influence.  But  whether  the  writings  of  those  pre- 
lates can  be  cited  here,  in  tracing  the  historical  laic  of  nations,  on  this  point,  depends 
on  the  question  whether  they  held  the  temporal  power  of  legislation,  or  not.  For, 
however  valuable,  in  an  ethical  point  of  view,  their  testimony  to  the  law  of  nature  may 
be,  it  will  have  no  force  in  proving  what  the  actual  jus  gentium  of  their  time  may 
have  been  ;  though  it  may  have  been  a  means  of  changing  that  law.  Compare 
1  Bancrufr's  Hist.  U.  S.,  p.  1G3.  (See  ante,  p.  95,  note,  on  the  relative  positions  of  the 
jus  gentium,  and  the  Canon  law.) 

Imp.  Leonis  Aug.  (Leo,  the  philosopher,  died  A.  D.  911.)  Novelise  constitutiones, 
IX.,  X.,  XI.  ;  that  slaves  should  not  become  free  by  takuig  holy  orders,  if  without  the 
knowledge  of  their  masters. 

It  is  difficult  to  judge  how  far  the  ecclesiastical  persons,  whose  efforts  in  their  times 
in  favor  of  manumission  are  recorded,  would  have  opposed  seri'dom,  in  forms  nearly  as 
much  opposed  to  free  condition,  according  to  modern  ideas.  The  ecclesiastical  corpo- 
rations ill  Burgundy,  Invemois,  and  other  provinces  of  France,  were  among  the  last  to 
emancipate  th.Lr  serfs.  See  Lalaure  :  Servitudes  Reelles,  p.  2.  Voltaire:  Diet.  Philos. 
V.  Esclaves. 

'  See  Ante,  §112. 


158  THE   NORTHERN   NATIONS. 

but  little  different  from  tliat  known  under  the  Roman  Empire, 
or  differed  only  by  allowing  a  greater  variety  in  the  nature  of 
its  burdens,  correspondent  with  the  feudal  elements  of  their 
civil  society,  which  permitted  also  a  recognition,  in  some  degree, 
of  the  legal  personality  of  the  bondsman.'  Upon  the  settlement 
of  those  nations  in  southern  Europe,  their  military  system  and 
the  distinctions  arising  from  the  fact  of  a  conquering  race  re- 
siding among  the  conquered,  made  the  serfdom  adopted,  if  not 
introduced  by  them,  an  equivalent  in  its  various  degrees  of 
oppressiveness  for  the  ancient  domestic  slavery  which  had  been 
obliterated  with  the  wealth  and  power  of  the  previous  masters.* 
After  the  general  conversion  of  the  northern  nations  of  Eu- 
rope their  international  intercourse  became  so  modified  that,  as 
between  Christian  nations,  prisoners  of  war  could  not  be  reduced 
to  slaver}- ;  though  captivity  and  the  right  to  demand  ransom,  as 
a  consequence  of  the  old  law  modified  by  the  habits  of  the 
Teutonic '  races,  continued  to  a  late  period.*  Feudal  servitude 
being  essentially  predial,  that  is,  accessory  to  the  soil  and  con- 

'  That  is,  among  the  German  nations  or  tribes,  a  portion  of  the  people, — the  con- 
stituents of  the  nation,  were  predial  servants,  annexed  to  the  soil,  and  the  master  had 
not,  as  a  general  rule,  tlie  power  of  life  and  death  over  them.  Tacitus :  Mores  Ger. 
c.  2").  Spelman's  Gloss,  voc.  Servus ;  "  Germanorum  instar,  erant  nostri  villani  a 
servis  multum  dirersi,  quidam  erant  prcediale.t,  quidam  persottale.t,  &c.  Among  the 
Gauls,  the  great  body  of  the  people  were  in  a  state  of  vassalage,  apparently  equivalent 
to  the  chattel  slavery  of  the  Romans.  Casar  de  Bel.  Gal.  L.  VI.  13.  "But  besides 
these  legal  persons,  who  were  not  free,  the  German  nations  also  traded  m  slaves  as 
articles  of  merchandise,  selling  captives  taken  in  war,  and  also  buying  of  the  nations 
on  the  north,  and  selling  in  the  southern  countries  of  Europe.  1  Hune's  Darstel.,  pp. 
102-107  :  cites  Fisclier  Gesch.  des  deutschen  Handels. 

'  Spence's  Inquiry  into  the  Origin  of  the  Laws,  &c.,  of  Modem  Europe,  pp.  .54, 
328.  Salic  laws  in  Canciani  Leges  Barbarorum.  During  the  later  Imperial  period  a 
clear  di.stinction  was  recognized  between  predial  and  domestic  slaves ;  the  condition 
of  the  former  (coloni,  inquilini,  adscriptitii,  or,  adscript!  gleb«)  resembling,  in  many 
respects,  that  of  the  more  modem  serfs  or  villeins.  See  Smith's  Diet  Antiq. :  J'ra- 
diiim.  In  Novell.  162,  c.  3,  Justinian  gives  the  mle  by  which  the  children  of  an 
adscriptitia  shall  be  divided  when  the  father  belongs  to  another  estate.  In  Novell. 
1.57,  tit.  40,  he  forbids  the  separation  of  families  of  such  predial  slaves.  See  Fletcher's 
studies  on  Slavery,  p.  327.  In  the  historj'  of  the  abolition  of  chattel  slavery,  the  fol- 
lowing laws  are  important.  Imp.  Leonis  Aug.  Nov.  Const.  38.  Ut  Imperatoris  servi 
de  rebus  suis  quo  mudo  velint  statuere  possint.  C.  59.  Abrogatio  legis  quae  hominem 
libcrum  se  vendere  permittit. 

'  Heineccius,  Jur.  Nat.  et  Gent.  L.  i.  c.  1,  §  2,  n.  "Postea  mores  Germanomm 
pagne  omnibus  gentibus  communes  facti  sunt  uti  recte  observavit  Grotius,  de  Jure 
B.  et  P.  ii.  §  1,  2. 

*  ."^uarez,  de  Legibus  etc.  L.  ii.  c.  19.  "  Sic  enim  Jus  Gentium,  de  servitute  capti- 
vorum  in  bello  justo,  in  Ecclesia  mutatum  est,  et  inter  Christianos  id  non  servatur." 

Grotius,  Lib.  iii  c.  7,  §  9 :  "  Sed  et  Christiauis  in  universum  placuit,  bello  inter 
ipsos  orto  captos  ser\-os  non  fieri,  ita  ut  vendi  possint,  ad  operas  urgeri,   et  alia  pati 


SLAVERY    AND    CHRISTIANITY.  169 

nected  with  a  state  economy  founded  on  the  distribution  and 
tenure  of  landed  estate,  gradually  acquired  the  character  of  a 
constitution  of  the  particular  law  of  each  state  (jus  proprium,  or 
jus  civile  in  the  same  sense)  as  distinguished  from  a  foundation 
judicially  ascribed  to  the  laio  of  nations:  and,  being  suscepti- 
ble of  great  variety  in  the  obligations  which  attached  to  it,  re- 
ceived the  legal  character  of  a  local  distinction  of  ranks,  or  of 
social  position,  in  the  institutions  of  nations  composed  of  indi- 
viduals of  various  race,  or  having  distinct  historical  origin,  but 
not  separated  by  any  strongly  marked  physical  distinctions.' 
The  subsequent  decay  of  that  servitude,  which  accompanied  the 
progress  of  Europe  in  intellectual  and  moral  im^jrovement,  needs 
not  to  be  here  particularly  considered.' 

§  163.  While  Christianity  may  be  truly  said  to  have  con- 
tributed greatly  to  alter  the  law  of  nations,  contained  in  inter- 
national and  municipal  law,  by  abolishing  or  modifying  slavery  ^ 
as  between  Europeans,  it  must  be  acknowledged  that,  as  it  con- 
tinued for  centuries  to  be  received,  it  also  modified  that  law  in 
introducing  a  new  basis  for  chattel  slavery.  At  an  early  period  .  / 
of  the  present  era  difference  of  religious  belief  was  made  a 
ground  of  distinction  in  supporting  a  right  to  hold  slaves.     Jews 

qute  servoram  sunt :  atque  ita  hoc  saltern,  quamquam  exiguum  est,  perfecit  reverentia 
Christiauae  legis.'' 

Ward's  Law  of  Nations,  vol.  i.  c.  9.  Vol.  ii.  p  31.  Vinnius;  Comm.  L.  i.  tit.  3. 
Gudelin  de  Jure  Novissimo,  L.  i.  c.  4,  §  10,  and  citations. 

'  Sir  Francis  Palgrave,  Hist,  of  Normandy  and  England,  pp.  31,  32,  considers  the 
distinctions  of  status  in  niediaival  times,  commonly  called  feudal,  as  being  historically 
derived  from  the  laws  of  the  Roman  Empire.  And  as  to  predial  slavery  in  Gaul  before 
the  Burgundian  invasion,  see  Montesq.  Esprit  d.  Lois,  L.  30,  c.  10. 

The  two  distinct  conditions  of  chattel  slave  and  of  predial  bondman  or  serf  must 
have  long  existed  together  in  Europe.  Down  to  the  commencement  of  the  tenth  cen- 
tury, slaves  of  the  northern,  and  tlien  barbarian  and  heathen,  nations  were  constantly 
sold  in  Germany,  France,  &c.  Hiine  :  vol.  i,  pp.  107,  113.  In  the  grants  of  Charle- 
magne (A.  D.  800)  "  he  invariably  bestows  lands  with  all  the  inhabitants,  houses, 
slaves,  meadows,  moveables  and  immoveables."  In  the  time  of  his  immediate  suc- 
cessors, "  a  frightful  traffic  is  secretli/  carried  on :  the  nobles,  ecclesiastical  and  secular, 
making  no  scruple,  when  pressed,  to  sell  the  children  of  their  serfs."  O.Kford  Chrono- 
logical Tables.  As  to  the  transition  from  per.'onal  to  feudp,l  slavery  among  the  Ger- 
mans and  Goths,  see  Mittei-maier's  Privatrecht,  §§  47,49.  Viimius :  Lib.  i.,  tit.  3. 
Bodin's  Republic,  B  i ,  c.  9.  Predial  slavery  lingered  in  some  of  the  provinces  of  France 
under  the  laws  of  Mahi-morte  in  17(il.  (Lalaure  ;  Voltaire;  Hallam's  Mid.  Ages,  c. 
ii.,  part  2.)  Predial  .serfdom  existed  in  Scotland  at  the  date  of  the  American  revolu- 
tion. See  Hugh  Miller's  My  Schools  and  School-masters,  p.  303.  Wade's  Hist,  of 
Middle  and  Working  Classes,  p.  10:  abolished  by  15  Geo.  3,  c.  28. 

■■  Ward's  Hist.  Law  of  Nation.s,  vol.  i ,  ch.  8,  refers  to  many  antiquaries  and  critics 
who  have  thoroughly  examined  this  subject. 


160  DIFFERENCES   OF   CREED. 

and  Pagans,  living  under  the  dominion  of  the  Christian  Empe- 
rors, being  forbidden  to  hold  Christians  in  chattel  bondage  ;  and 
afterwards  the  Papal  church  prohibited  Jews  from  holding  even 
heathen  slaves.'  It  was  generally  assumed  among  Christian 
nations,  until  a  period  comparatively  recent,  that  their  supe- 
riority as  possessors  of  the  true  faith  gave  them  the  right  of  re- 
ducing infidels  to  slavery  irrespectively  of  the  ancient  laws  of 
war ;  ^  while  the  followers  of  Mohammed,  calling  themselves 
the  true  believers,  have  drawn  similar  conclusions  for  their  own 
use.  The  practice  of  enslaving  their  prisoners  of  war  was  at 
first  mutual  between  Christian  and  Mohammedan  nations  as  to 
each  other,'  and  was  maintained  by  the  last  against  the  fii"st  to 
a  late  period ;  and  may  be  in  theory  to  the  i^resent  day.  The 
Barbary  powers  justified  their  piracies  against  Europeans  upon 
the  pretext  of  a  right  sanctioned  by  religion  and  ancient  inter- 
national usage ;  and  it  was  only  at  the  beginning  of  the  present 
century  that  they  were  finally  compelled  to  abandon  them  after 
reiterated  assertions  of  the  modern  international  law  by  Chris- 
tian powers.* 

§  164.  Both  Christians  and  Mohammedans  long  maintained 

the  right  to  enslave  heathens  and  barbarians.     Among  the  first 

[  the  act  was  almost  universally  supported,  if  the  extension  of  the 

Christian  faith  and  civilization  were  made  the  professed  motive.* 

'  Codex,  Lib.  i.,  tit.  x  Decree  of  Gregory  I.  anno  502,  that  slaves  bonght  by 
Jews  should  be  set  free  •  Corp.  Juris.  Canonici ;  Decret.  Pars.  i.  Dist.  xiii.  Fuero 
Juzgo,  Lib.  xii.,  c.  3,  §  12.  Fuero  Real,  Lib.  iv.  Blair,  p.  72.  Bishop  England's 
10th  letter,  Works,  vol.  iii.,  p.  132.  Gibbon:  vol  ii.,  p.  274.  Gudelin  :  de  Jure 
Noviss.  "  Rursum,  qnamvis  Judteis  servos  habere  C'hristianos  non  licet,  adscriptitios 
tanaeii  habere  permissuin  est,  c.  2,  tit.  Decret.  de  Judteis." 

"^  Even  in  Bulls  of  excommunication  issued  by  the  heads  of  the  Roman  Church  pre- 
vious to  the  Refonnation  it  was  common  to  declare  the  inhabitants  of  the  excommuni- 
cated districts  liable  to  be  enslaved.  See  Bull  of  Gregory  XI.  against  Florentines, 
1376;  Julius  XL  against  Venetians,  1.508  ;  Paul  TIL  agains't  Henry  VIII.,  1538.  See 
Fletcher:    Studies  on  Slaveiy,  pp.  366-368.     Bower:  vol.  vii.,  pp.' 379-447. 

'  Hune  :  vol.  i ,  pp.  127,  148.  Calvin's  case,  7  Coke,  17:  "All  Infidels  are  in  law 
perpetui  iniir.ici,  perpetual  enemies  (for  the  law  presumes  not  that  they  will  be  con- 
verted, that  being  remota  potentia,  a  Remote  Possibility) ;  for  between  them,  as  with 
the  Devils  whose  subjects  they  be,  and  the  Christian  there  is  a  perpetual  hostility,  and 
can  be  no  peace ;  for  as  the  Apostle  says,  &c.  And  the  Law  saith,  Judaeo  Christia- 
num  nullum  serviat  mjinicipium,  ncfas  enim  est,  &c.     Repister,  282." 

*  Sumner's  Orations  and  Speeches,  vol.  i.  Lecture  on  White  Slavery  in  the  Barbary 
States.     Hild.  Hist.  U.  S.,  vol.  v.,  p.  5G1  ;  vol.  vi.,  578. 

^  The  tenor  of  the  Papal  Bxills,  in  the  years  1430,  1438,  1454,  1458,  1484,  accord- 
ing to  the  author  of  Letters  to  Pro-Slavery  Men,  p.  42,  (Boston,  1855,)  citing  Coloniae 
Anglicana;  IllustratiE ;  by  Wm.  Bollan,  Lond.,  1762,  Part  i.,  pp.  115-141,  is  "to  ap- 


NEGKO   SLAVERY.  161 

Slavery  had  existed  in  Africa  from  the  first  acquaintance  of 
Europeans  Avitli  that  continent ;  '  but  negro  slavery,  in  connec- 
tion with  modern  European '  law,  was  based  on  the  idea  above 
stated  as  part  of  the  law  of  nations  for  Christian  powers :  that 
is,  the  African  or  Indian  slave  was  held  by  the  European  mas- 
ter, as  merchandise,  by  a  principle  of  law  then  common  to  all 
Christian  nations,  without  reference  to  the  villenage  of  the  feu- 
dal system;  as  the  slave  of  the  Koman  master,  of  whatever 
race,  had  been  held  by  a  law  common  to  the  then  known  world. 
§  165.  At  the  time  of  the  planting  of  the  English  colonies  in 
America,  the  laws  of  war  in  Europe  still  retained  traces  of 
ancient  harshness,  and  the  right  of  Christian  powers  to  enslave 
prisoners  in  war  with  heathen  and  infidel  nations,  was  almost 
universally  admitted.  In  wars  between  Europeans,  the  custom 
of  enslaving  prisoners  of  war  had  ceased,  and  the  claim  of  pri- 
vate proj^erty  in  the  captor,  giving  a  right  to  demand  ransom, 
which  had  existed  for  some  time  after  the  amelioration  of  the 
ancient  law  of  captivity,  was  almost  universally  abandoned." 
But  the  slavery  of  captives  of  the  difierent  creeds  was  still  sup- 
ported by  Christians  and  Mohammedans  against  each  other. 

propriate  the  kingdoms,  goods  and  possessions  of  all  infidels  or  heathen  in  Africa,  or 
wheresoever  found,  to  reduce  their  persons  to  perpetual  slavery,  or  to  destroy  them  from 
the  face  of  the  earth" — "to  take  any  of  the  Guineans  or  other  negroes,  by  force  or  by 
barter."  Gregory  XVI.  in  his  Bull  against  the  slave  trade  in  1840  (see  Bishop  Eng- 
land's Works,  vol.  3,  p.  114)  cites  Bull  of  Pius  II.  in  1462  as  against  the  same  trade. 
Accorduig  to  the  Bull  of  Gregory  XVI.,  Paul  III.,  1537,  Urban  VIII.,  1639,  Bene- 
dict XIV.,  1741,  and  Pius  VII.  opposed  the  slave  trade.  The  author  of  the  letters  re- 
ferred to  says  that  their  BuUs  were  not  against  the  trade  in  general,  or  not  against  the 
African  slave  trade. 

'  Banc.  Hist.  vol.  L,  165.  Vol.  iii.,  403.  Hune's  Darstellung,  vol.  i.,  ch.  3-  The 
Romans,  in  Virgil's  time,  had  negro  slaves  ;  a  small  poem  entitled  Moretum,  ascribed 
to  him,  contains  a  description  of  a  negro  woman,  represented  as  being  the  only  domes- 
tic of  a  peasant,  "exigui  cultor  rusticus  agri,"  v.  31  : 

"  Interdum  clamat  Cybalen,  erat  unica  cnstos, 
Afra  genus,  tola  patriam  testante  figura, 
Torta  comam,  labrocjuo  tumens,  et  fusca  colorem ; 
Pectore  lata,  jacenp  in.itnmis,  compressior  alvo, 
Cruribus  exilis,  spatioja  prodiga  planta; 
Continuis  riniis  calcanea  scissa  rigebant." 

'  Mackeldey's  Compendium  Tr.  Kaufmann,  p.  85,  note  :  "  In  like  manner  such  pre- 
cepts [of  the  Roman  law]  are  inapplicable,  which  rest  upon  principles  that  have  never 
been  acknowledged  in  Germany,  or  the  objects  of  which  do  not  exist  here ;  e.  g.  the 
law  applicable  to  slavery."  But  slavery  is  allowed  under  the  Prussian  Landrecht, 
Th.  II.,  tit.  5,  §  196,  operating  as  private  international  law.  See  Article  by  the  late 
Mr.  Wheaton  in  Revue  Etrang.  et  Fran.,  tom.  viii.,  p.  345,  and  the  6th  6d.  of  his  Inter- 
nal. Law,  Introd.  by  W.  B.  Lawrence,  Esq.,  p.  cxxx. 

'  1  Kent's  Comm.,  p.  14.     Bynkershoek :  Quoest.  Jur.  Pub.,  Lib.  L,  c.  8. 

11 


162  MOOKISH   SLAVES. 

Moors — tlie  Arabian  inhabitants  of  Africa,  were  still  held  as 
slaves  by  captivity,  in  Spain,  France,  and  Italy ;  and  probably 
many  Africans  of  negro  race  were  held  as  slaves  in  Europe 
under  the  name  of  Moors,'  and  their  slavery  ascribed  to  the 
same  international  usage.  Domestic  slavery,  as  part  of  the  sys- 
tem of  civil  society,  still  remained,  as  at  the  present  day, 
among  Mohammedan  nations,  and  the  negro  tribes  of  Africa ; 
in  which  country  it  is  believed  to  have  been  for  many  centuries 
the  condition  of  a  vast  majority  of  the  inhabitants."  It  is  prob- 
able that  long  after  the  ancient  chattel  slavery  of  Europe  had 
been  replaced  by  the  serfdom  of  the  Middle  Ages,  negroes  had 
occasionally  been  brought  as  articles  of  commerce  to  Europe, 
and  retained  there  as  domestic  slaves.*  But  it  was  not  until  the 
geographical  discoveries  of  the  Portuguese  in  the  fifteenth  cen- 
tury, that  African  slaves,  in  any  considerable  number,  were 
made  an  article  of  commerce  in  Europe.  The  first  recorded 
instance  of  the  importation  of  African  slaves  by  the  Portuguese 
from  the  western  coast  of  Africa,  illustrates  the  principles  of 
the  law  of  nations  exhibited  at  that  time  in  the  international 
intercourse  of  Christian  nations  with  Mohammedans,  Moors,  and 
heathen  negroes  of  Africa.  In  the  year  1440,  Antonio  Gonsalez, 
sent  out  by  Prince  Henry  of  Portugal  on  a  voyage  of  discovery, 
attacked  a  party  of  wandering  Arabs  or  Moors,  and  carried  oft' 
ten  or  twelve  of  them  captives  to  Portugal,  where,  and  in  the 
Spanish  portion  of  the  peninsula,  thousands  of  the  subjects  of 
the  extinct  Moorish  kingdom  in  Spain  were  already  enduring 
'slavery,  as  the  consequence  of  their  defeat  by  the  Christian 
princes.  Three  of  these  captive  Moors,  at  the  command  of 
Prince  Henry,  and  on  their  promise  to  pay  ransom,  were  sent 
back  with  Gonsalez,  on  his  second  voyage  to  the  African  coast 
in  1442 ;  and  he  received  from  their  kinsmen,  in  exchange  for 
his  prisoners,  a  ransom  consisting  of  gold  dust  and  ten  or  twelve 
negro  slaves,  as  ordinary  articles  of  merchandise.*     A  similar 

'  ITiine,  vol.  I.,  pp.  128,  130,  211. 

"  Huiie,  vol.  I.,  pp.  1-48 — 175. 

'  Bancroft,  vol.  I.,  p.  165.  Hune,  I.,  150 — 163.  Citing  Edrisius  and  Leo  Afri- 
canus,  that  accounts  of  a  regular  trade  in  negro  slaves  exist  from  about  the  year  ^190. 
Raynal's  W.  I.,  torn.  4',  p.  43. 

*  Hiiue,  vol.  I.,  p.  181.  1  Banc.,  166,  cites  Xavarete,  Introduccion  S.  XIX.,  (see 
2  Presc.    Fcrd.  and  Is.,  114,)  that  Spain  anticipated   Portugal  iu  introducing  negroes 


AFRICAN   SLAVE   TRADE.  168 

transaction  became  one  of  the  objects  of  succeeding  voyages. 
Moors  and  negroes  were  carried  away,  by  force,  by  the  Portu- 
guese adventurers,  until,  after  tlie  exploration  of  the  <;oast  had 
been  pushed  as  far  south  as  the  richer  and  more  populous  shores 
of  the  Gulf  of  Guinea,  it  was  found  safer  and  more  profitable  to 
procure  only  negroes,  by  purchase  from  the  native  slave  mer- 
chants. 

§  166.  This  traffic,  in  negroes  as  merchandise,  was  at  this  time 
recognized  as  legitimate  by  European  governments,  without  any 
direct  sanction  from  positive  legislation,  but  rested  on  the  gene- 
ral custom  among  nations,  known  both  in  municipal  and  inter- 
national private  law, — that  custom  which,  under  the  name  of 
"  the  custom  of  merchants," — meaning  merchants  without  re- 
gard to  nationality,  was  recognized  in  the  English  courts  as  a 
rule  of  law.  Property  in  heathen  negroes  bought  in  Africa, 
being  then  regarded  as  the  effect  of  natural  law^  so  far  as  it  is 
known  in  jurisprudence,  or  as  an  illustration  of  the  distinction 
between  persons  and  things,  entering  into  all  law,  because 
founded  in  natural  reason.  The  trade  in  that  property  was  re- 
garded as  founded  on  existing  relations  between  legal  persons 
in  respect  to  things,  which  might,  like  any  other  branch  of  com- 
merce, be  regulated  by  statute,  without  a  previous  act  declaring 
the  condition  of  the  negroes  who  were  the  objects  of  those  rela- 
tions and  of  that  commerce.  Like  many  other  branches  of  com- 
merce at  that  period,  it  was  an  object  of  monopoly;  being  some- 
times granted  by  the  patent  of  the  monarch  to  companies  of 
discoverers,  commercial  adventurers,  and  colonists  trading  in 
and  between  those  regions  then  recently  made  known,  and  popu- 
larly designated  the  Eastern  and  "Western  Indies.  The  conver- 
sion of  infidels  being  always  proposed  as  a  prominent  object, 
and  declared  to  be  the  justifying  motive  for  the  forcible  en- 
slavement of  barbarians  and  heathens,  whenever  contemplated 
in  such  enterprises  ; '  if  not  also  for  the  acquisition  of  purchased 
slaves.  On  the  discovery  of  America,  the  same  reasons  which 
upheld  the  slavery  of  African  Moors  and  negroes  were  held  to 

into  Europe.    That  Se\nllian  merchants  imported  slaves  from  Western  Africa, — Irving's 
Columbns,  vol.  II.,  p.  351. 

'  1  Hune,  p.  304,  cites  Benezet,  p.  58. 


184  DISTINCTION    OF   RACE.    , 

apply  to  the  barbarian  inhabitants  called  Indians ;  and  property 
in  such  Indians  had  the  same  basis  in  the  law  of  nations  ;  until 
a  distinction  was  made,  between  the  negro  and  Indian  races,  by 
legislative  enactment  in  the  colonies  of  the  several  colonizing 
nations.*  Those  taking  effect  in  the  English  colonies  will  here- 
after be  more  particularly  referred  to. 

§  1G7.  Whatever  foundation  there  may  have  been  in  natural 
reason  for  slavery,  in  the  opinion  of  the  nations  of  antiquity, 
the  Roman  legislators,  or  the  Asiatic  races,  there  does  not  ap- 
pear to  have  been,  in  their  judgment,  any  arguments,  from  the 
same  source,  establishing  such  differences  between  mankind  that 
some  races  were  liable  to  that  chattel  condition,  and  others 
naturally  exempt.'  The  law  of  nations,  in  their  conception  of 
it,  regarded  all  men  as  equally  capable  of  becoming  property. 
The  modern  law  of  nations,  as  exhibited  in  the  practice  of  mod- 
ern European  states,  must  be  considered  not  only  to  have  varied 
from  the  ancient  rule,  in  asserting  a  right  of  dominion  in  Chris- 
tians over  infidels,  but  to  have  been  farther  modified,  since  the 
geographical  discoveries  of  the  fifteenth  century,  and  during 
the  establishment  of  civilized  dominion  and  municipal  law  irj 
America,  by  the  introduction  of  a  distinction  founded  on  race 
or  descent,  and  applied  according  to  physical  structure.  Tlie 
capacity  for  that  condition  of  loss  of  legal  personality,  or  the 
liability  to  become  property,  being,  since  that  period,  confined 
to  the  Indian  races  of  America,  and  African  Moors  and  negroes; 

'  1  Banc,  167, — that  natives  from  the  coast  of  America  were  kidnapped  by  slavers: 
cites  Peter  Martyr  d'Anghiera,  d.  vii.,  c.  1,  2.     Hakluyt,  v.  404,  405,  407. 

The  history  of  the  introduction  of  negroes  into  Spanish  America,  and  of  the  influ- 
ence of  Las  Casas  in  effecting  it  is  well  known :  see  Irving's  History  of  Columbus. 
Robertson's  Hist,  of  Am.,  and  Hist,  of  Charles  V.  1  Banc,  ch.  5.  1  Hiine's  Darstel- 
lung,  ch.  3.     Herrera  is  the  original  authority  on  these  points. 

''  In  his  speech,  7  March,  1850,  Mr.  Webster  said.  Works,  vol.  V.,  p.  329,—"  The 
ingenious  philosophy  of  the  Greeks  found,  or  sought  to  find,  a  justification  for  it  exactly 
upon  the  grounds  which  have  been  assumed  for  such  a  justification  in  this  country  : 
that  is,  a  natural  and  original  difference  among  the  races  of  mankind,  and  the  infe- 
riority of  the  black  or  colored  race  to  the  white.  The  Greeks  justified  their  system  of 
slavery  upon  that  idea  precisely.  They  held  the  African  and  some  of  the  Asiatic  tribes 
to  be  inferior  to  the  wliite  race,"  &c.  There  is  nothing  to  justify  tliis  assertion.  It 
appears  to  be  founded  on  the  assumption  that  those  whom  the  Greeks  called  $dp0apoi 
were  identical  with  the  half-civilized  nations  of  our  own  time.  The  Greeks  meant  by 
barbarians  those  who  were  not  Greeks :  and  believed  a  Greek  captive  to  be  a  lawful 
slave  to  a  barbarian  captor. 


EFFECT    OF   CONVERSION.  166 

in  other  words,  this  principle  of  the  law  of  nations  became  ap- 
plied as  a  \sLvr  personal  to  those  races.' 

§  168.  Slavery  of  Africans  or  Indians,  whenever  thus  sup- 
ported on  principles  of  ancient  authority,  modified  by  appli- 
cation to  persons  of  a  particular  race  under  the  existing  law  of 
nations*  would,  apparently,  have  continued  its  existence  in  the 
issue  of  those  persons,  by  a  principle  derived  from  the  same 
source,  that  is,  the  inheritable  character  of  slavery,  or  that  prin- 
ciple by  which,  the  personality  of  the  parent  being  unrecognized 
by  the  law,  legal  personality  was  not  acquired  by  the  issue ; 
which  was  considered  only  as  the  natural  increase  of  the  prop- 
erty, and  equally  the  object  of  ownership.^ 

But,  inasmuch  as  the  heathenism  of  the  enslaved  was  pre- 
supposed to  be  an  essential  circumstance  and  part  of  that  con- 
dition of  things  upon  which  the  law  of  nations,  as  then  received, 
recognized  the  chattel  condition  of  the  negro  or  Indian  bond- 
man, and  the  right  of  property  in  the  European  owner,  it  would 
be  a  natural  question  before  any  tribunal,  within  whose  juris- 
diction such  negro  or  Indian  might  afterwards  be  found,  whether 
after  his  baptism  or  presumed  conversion  there  was  any  rule, 
having  the  same  historical  existence,  that  is,  being  a  law  of 
nations,  which  would  still  support  that  condition  and  right  of 

'  It  is  this  personal  character  of  the  law  of  chattel  slavery  in  modem  times,  which 
restrains  the  effect  (as  an  indication  of  the  historical  laio  of  nations,)  of  that  otherwise 
general  attribution  of  the  right  of  personal  liberty,  which,  b}^  certain  European  jurists 
of  the  1 7th  centurj',  herein  after  cited,  is  asserted  to  have  had  effect  in  preventing  the 
international  recognition  of  slavery  in  most  European  countries  at  the  beginning  of  that 
century:  see  post,  ch.  VII.,  and  notes  from  Heineccius,  Christiuasus,  &c.  The  period 
at  which  they  wrote  was  precisely  that  at  which  the  European  serfdom  had  acquired 
the  distinctive  character  of  an  institution  of  the  local  law(j.  proprium)of  each  country, 
and  at  which  the  chattel  slavery  of  heathen  and  barbarian  negroes  and  Indians,  by  the 
law  of  nations,  continuing  to  be  applied  to  them  as  a  personal  law,  was  becoming  more 
frequently  recognized  in  the  international  law  of  the  commercial  and  colonizing  nations 
of  Europe.  This  modification  of  the  law  of  nations,  at  this  period,  is  shown  by  Bodin, 
de  Rep.,  [A.  D.  1583,]  B.  I.,  ch.  5,  Knolles'  Transl.,  London,  IG06,  p.  32,— "  and  for 
that  the  whole  world  is  full  of  slaves,  excepting  certain  countries  in  Europe,  (which 
since,  by  little  and  little,  receive  them),"  &c. ;  and  in  same  chapter — "  and  although 
sen-itude,  in  these  latter  times,  was  left  off,  for  about  three  or  four  hundred  years,  yet 
it  is  now  again  approved  by  the  great  argument  and  consent  of  almost  all  nations." 

By  some  writers  on  the  subject  of  African  slavery,  and  even  by  some  judicial  tribu- 
nals, it  has  been  held  that  tiiis  personal  character  of  the  law  of  slavery  is  autliorita- 
tively  determined  by  Revelation.  In  Neal  v.  Farmer,  9  Georgia  R  ,  p.  582,  it  is  de- 
clared that  the  slavery  of  ''  the  issue  of  Ham," — meaning  of  persotis  of  Africau  or 
negro  race,  is  "an  institution  of  Cliristianity."  (Italicised  in  the  lieport.) 
'  See  ante,  §  58.  '  See  ante,  ^  154. 


166  EFFECT   OF   CONVERSION. 

ownership.  The  question,  it  is  to  be  remembered,  is  not  one  of 
a  doctrine  of  the  Christian  faith  or  morals,  either  in  the  apprehen- 
sion of  the  Christian  church  or  of  an  individual  clothed  with 
judicial  power,  but  8inii:>ly  of  the  existence  of  a  rule  having  the 
game  historical  support  as  the  law  by  which  the  slavery  of  the 
negro  or  Indian  liad  first  been  established  ;  a  rule  having  such 
support,  by  the  use  and  practice  of  nations  in  their  municipal 
(internal)  and  international  law,  that  it  could  be  judicially  re- 
cognized and  received  as  an  indication  of  natural  reason.  It  is 
a  question  of  the  juridical  action  of  nations  which  have  had  juris- 
diction over  negroes  and  Indians,  enslaved  while  heathens,  and 
afterwards  baptized  and  Christianized. 

It  would  depend,  also,  upon  the  juridical  action  of  differ- 
ent nations  in  respect  to  this  class  of  natural  persons,  whether 
any  other  or  new  principles,  having  a  like  personal  extent  as  to 
them,  should  have  the  character  of  universal  jurisprudence  or 
the  laio  of  nations.  If  generally,  wherever  Moors,  negroes,  or 
Indians  were  under  the  legislative  (juridical)  power  of  Euro- 
peans, only  a  partial  recognition  should  be  made  of  rights  and 
privileges  which,  in  like  circumstances,  would  be  attributed  to 
whites,  or  men  of  the  European  race,  there  might  be  a  legal 
attribution  of  social  disability  or  inferiority,  having  a  juridical 
origin  similar  to  that  liability  to  chattel  slavery  which  formerly 
was  maintained  by  the  law  of  nations.  K  no  such  condition  of 
inferiority  should  become  established  by  the  general  practice 
of  nations,  the  law  of  nations  must  be  held  to  be  the  same  in 
respect  to  all  races  of  men  ;  so  that  in  every  jurisdiction,  irre- 
spectively of  local  customary  law  and  statutes  (jus  proprium), 
a  person  of  one  of  those  races  would  be  the  subject  of  legal  re- 
lations in  the  same  manner  as  a  person  of  any  other  race. 

§  169.  It  would  be  difficult  to  discover  any  general  harmony 
of  practice  in  tliis  respect  among  civilized  nations,  at  any  par- 
ticular point  of  time  during  the  period  in  which  the  English 
colonies  were  founded  in  America,  or  at  any  period  since  the 
modern  extension  of  the  African  slave  trade.  The  slavery  of 
African  negroes  was  certainly  continued  after  their  convereion 
in  all  the  colonies  planted  by  the  different  Eurojjean  nations. 
And  if  reference  is  made  to  the  practice  of  Mohammedan  states 


EFFECT   ON   CHATTEL   SLAVERY.  167 

in  analogous  circnrastances,  it  does  not  appear  that  they  ever 
have  recognized  tlie  religion  of  persons  held  in  bondage  as 
determining  their  condition  in  respect  to  the  possession  of  per- 
sonal liberty,  or  considered  the  conversion  of  a  slave,  of  a  dif- 
ferent faith,  to  Islamism,  a  legal  cause  of  enfranchisement. 
A  ditference  of  creed  is  viewed  only  as  one  of  the  circumstances 
which  justify  the  original  act  of  enslavement.*  It  is  probable, 
however,  that,  with  them,  adherence  to  the  faith  causes  a  certain 
recognition  of  legal  personality  and  capacity  for  rights ;  ^  and, 
from  the  intimate  connection  between  their  civil  and  religious 
codes,  that  it  would  be  unlawful  to  sell  such  converted  slave  to 
any  one  who  was  not  of  the  same  faith.  In  which  case  such 
slave  would  really  no  longer  be  treated  as  a  chattel,  or  an  object 
of  property,  in  the  same  degree  as  when  unconverted. 

The  slavery  of  Christianized  Moors  and  negroes  was  for  a 
time  maintained  in  some  parts  of  Europe  ;  *  though  it  is  uncer- 

'  It  is  commonly  thought,  that  by  the  Mohammedan  law,  a  slave  of  another  creed 
is  emancipated  on  conversion  to  Islamism.  But  this  is  incorrect.  Hedaya :  Hamil- 
ton's Translation,  Vol.  I.  p.  420 ;  on  manumission.  "  Ittak,  or  the  emancipation  of 
slaves,  is  recommended  by  the  prophet,  who  has  declared,  '  Whatever  Mussulman  shall 
emancipate  a  slave,  (being  a  believer,)  God  will,  for  everj'^  member  of  the  slave  so 
emancipated,  release  a  similar  member  of  the  emancipated  from  hell-fire.' "  p.  434. 
"  If  the  slave  of  an  infidel  nation,  becoming  a  convert  to  the  faith,  retire  into  the  Mus- 
sulman territory,  he  is  free ;  because,  when  the  slaves  from  the  countries  around  de- 
serted their  masters,  and  came  unto,  and  embraced  the  doctrines  of  the  prophet,  he 
declared,  'These  are  the  freedmen  of  God;'  and  also,  because  the  slave,  at  the  time 
he  delivers  himself  up,  is  a  Mussulman,  and  bondage  is  not  established  in  a  Mussul- 
man originally."  And  see  Putnam's  Mag.,  1855,  June,  on  Slavery  in  the  Ottoman 
Empire.  Mr.  Sumner,  Orations  and  Speeches,  12mo,  Vol.  I.  p.  292,  note,  says:  ''In 
point  of  fact,  freedom  generally  followed  conversion;  but  I  do  not  find  any  injunction 
on  the  subject  in  the  Koran." 

'  Hamilton's  Hedaya,  Introd.,  p.  57.  "  The  law  in  many  instances  affords  them 
[slaves]  protection  against  injustice,  and  declares  them  to  be  '  claimants  of  right,'  " — 
and  Book  32  and  36  of  the  same — that  slaves  or  bondmen  of  various  conditions  are 
recognized  by  the  law.  Ahids — absolute  slaves,  and  Mokatibs — slaves  partially  emanci- 
pated under  some  conditions  of  service  or  payment.  Mazoons — slaves  licensed  to  trade 
There  are  slaves  transferable  and  others  not. 

^  That  enslaved  heathens  and  Mohammedans  in  Spain  and  Portugal  were  not  made 
free  on  becoming  Christianized  ;  Gudelin,  de  Jure  Novissimo,  Lib.  i.,  c.  4,  7.  "  Ac 
mos  est  ibi  servos  servos  permanere,  quanivis  religionem  Mahumetis  ejuraverint,  et 
Christiana  imbuantur.  Quod  absurdum  videri  non  debet,  cum  sententia  sit  approbata 
serv-itutem  personarum  et  dominicam  potestatem  legi  divin.-B  non  adversari.  Jjidacua 
Coviir.  ad  rei/.  percatum,  p.  2,  §  11.  Ycrum  recens  est  Pii  Quinti  constitutio  exstans  ad 
Petrum  JMutliitum.  In  Summa  Con.stitutionum  summorum  Pontificum  captivos  fieri 
libeios,  suscepto  sacro  baptisniate,  qui  sub  tutelam  civis  cujuspiam  Romani  confugeriiit." 
Vinnius:  Comm.  Lib.  i.,  tit.  3.  "Ac  mos  est  (in  Lusitania  aliisque  Hispania^  partibus) 
60  quod  servum  esse  non  adversaretur  legi  Divinae.  And  Bodin  ;  Repub.  Knolles'  Trans, 
pp.  41,  42.  Bishop  England's  tenth  letter; — Works,  vol.  3,  p.  152.  Irving's  Hist,  of 
Columbus,  B.  xiv.,  c.  3  ; — "It  was  permitted  to  c airy  to  the  colony  [Hispaniola,  A.  D. 


168  LAW   OF   NATIONS HOW   KNOWN. 

tain  whetlier  they  were  regarded  as  chattel  slaves,  or  as  legal 
persons  held  to  services,  as  were  the  feudal  serfs  of  the  same, 
countries.  In  other  European  states,  the  slavery  of  Moors, 
negroes,  and  Indians  was  never  actually  recognized.  And 
tinally,  at  some  period  in  the  18th  century,  no  distinction  was 
recognized  in  Europe  between  persons  of  different  races  hciiig 
domiciled  or  permanent  inhahitants,  in  respect  to  the  enjoyment 
of  personal  liberty.  Tlie  slavery  of  Christianized  negroes 
brouglit  over  from  slaveholding  jurisdictions  and  regarded  as 
aliens,  was  during  the  17th  and  18th  centuries  supported  in  some 
instances  and  in  others  disallowed.* 

§  170.  But  though  it  may  be  difficult  to  ascertain  whether, 
at  any  particular  period,  some  one  rule  or  principle  lias  been 
maintained  by  a  certain  number  or  class  of  nations,  it  may  be 
easier  to  discover  whether,  in  tlie  jurisprudence  of  any  one 
nation,  a  recognized  legal  effect  has  been  judicially  ascribed  to 
a  rule  supposed  to  prevail  among  all  nations,  or  to  a  principle 
of  local  origin. 

A  legal  effect  must  be  produced  by  the  application  of  either 
municipal  (internal)  or  international  law.  In  examining  the 
municipal  (internal)  law  of  any  one  state  with  refei'ence  to  the 
present  subject  of  inquiry,  it  is  to  be  noticed  that  though  such 
converted  slaves  may  not  have  been  set  at  liberty,  enfranchised, 
or  put  on  an  equal  footing  with  the  other  subjects  of  such  do- 
minion in  respect  to  the  enjoyment  of  personal  liberty,  yet  if 
their  condition  was  recognized  as  an  incident  of  a  relation 
between  legal  persons,  consisting  of  correlative  riglits  and  obli- 
gations, (like  tliat  of  the  feudal  serf,  or  of  the  Mohammedan 
slave  in  Mohammedan  countries,  according  to  the  view  above 
taken  of  his  condition,)  that  condition  of  bondage  could  no  longer 
be  regarded  in  the  jurisprudence  of  that  nation,  or  of  any  other, 
as  the  effect  of  a  law  of  nations — universal  jurisprudence,  or  of 
natural  reason  as  shown  by  that  law.     Because,  as  has  been 

1501]  negro  slaves  bom  among  Christians;  (cites  Herrera,  Hist.  Ind.  decad.  1,  Lib.  iv., 
c.  12)  that  is  to  sav,  slaves  bom  in  Seville  and  other  parts  of  Spain,  the  children  and 
descendants  of  natives  brought  from  the  Atlantic  coast  of  Africa,  where  such  traflSc  had 
for  some  time  been  carried  on  by  the  Spaniards  and  Portuguese." 
.  '  The  authorities  showing  this  will  be  presented  in  a  chapter  treating  of  the  pri- 

vate international  law  in  connection  with  slavery  during  the  colonial  period. 


LAW    OF   NATIONS HOW   KNOWN.  169 

shown  ill  §  112,  it  is  chattel  slavery  alone  that  can  be  the  same 
status  in  different  countries,  and  tlie  servile  condition  of  a  legal 
person  varies  in  different  countries,  according  to  the  nature  of 
the  correlative  riglits  and  obligations,  in  respect  to  other  persons, 
and  in  respect  to  things,  which  may  be  attributed  to  the  master 
and  bondman.  The  condition  of  such  person,  in  whatever  obli- 
gations it  might  consist,  would  indeed  have  been  regarded  as 
agreeable  to  natural  reason  in  the  view  of  all  tribunals  acting 
under  tlie  state  establishing  that  condition  ;  because  all  the  laws 
of  a  state  are  promulgated  as  jural  laws,  and  received  in  its 
own  jurisdiction  as  consistent  with  natural  reason.  But  it  would 
no  longer  have  been  taken  to  be  a  condition  proved  to  be  jural 
from  the  general  reasoning  of  mankind. 

And  if,  in  any  countries  wherein  negroes  or  Indians  were 
legally  held  as  slaves,  notwithstanding  their  conversion  to  Chris- 
tianity, such  slavery  had  been  specially  supported  by  positive 
legislation,  it  would  therein  be  more  doubtful  whether  that  con- 
tinued slavery  could  have  been,  in  such  countries,  judicially 
attributed  to  universal  jurisprudence. 

But  according  to  what  has  been  said  on  this  point  in  the 
elementary  examination  of  the  subject,  given  in  the  second 
chapter,  a  doctrine  of  this  character  is  properly  distinguishable 
only  in  the  judicial  application  of  private  international  law. ' 

The  slavery  of  Christanized  negroes,  Moors,  or  Indians  might 
have  been  continued  in  one  or  more  countries  of  which  they 
were  domiciled  inhabitants,  and  it  may  not  be  easy  to  discrimi- 
nate whether  it  was  therein  judicially  attributed  to  a  principle 
of  universal  jurisj)rudence,  or  to  some  law  of  national  origin 
(statute  or  local  custom),  being  a  jus  proprium  as  distinguished 
from  a  jus  gentium.  But  where  the  question  may  have  occurred 
under  the  private  international  law,  as  where  a  Christianized 
negro,  &c.,  had  been  brought  into  the  forum  of  jurisdiction 
from  some  foreign  country,  wherein  he  had  been  (it  was  ad- 
mitted) lawfully  held  in  slavery,  and  the  question  was  of  the 
continuance  ^  of  that  condition,  it  would  become  necessary  for 
the  tribunal  to  decide  whether  it  was  supported  in  the  forum  by 
force  of  the  law  of  nations^  or  whether  its  continuance  would 

'  See  ante,  §§  94,  101.  »  See  ante,  §  G8. 


170  THE   ANCIENT   PRACTICE. 

depend  on  statute  and  local  precedent,  includino^  tlie  go-called 
rule  of  comity^  the  nature  and  limits  of  which  liave  also  been 
examined  in  the  second  chapter.' 

§  171.  It  seems  prohaMo  tliat,  in  the  first  instances  of  an 
inquiry  as  to  the  legal  condition  of  a  Christianized  Moor,  negro, 
or  Indian,  judicial  tribunals  would  have  referred  to  the  former 
legislative  (juridical)  action  of  European  states  in  reference  to 
the  slavery  of  whites,  or  persons  born  in  Europe.  Eor,  as  has 
been  shown,  the  slavery  of  infidels  and  heathen  negroes  and 
Indians  was  of  the  same  origin  ;  that  is,  was  ascribed  to  princi- 
ples traceable  in  the  history  of  jurisprudence  as  part  of  the  cus- 
tomary law  of  the  civilized  world.  In  tracing  the  decay  of  that 
chattel  slavery  which,  without  any  distinction  of  race  or  j)hysi- 
cal  structure,  had  been  an  element  of  civil  society  under  the 
Roman  Empire,  it  was  shown,  that  though  the  civil  poAver  did 
not  immediately  determine  the  legal  rights  and  obligations  of 
natural  persons  according  to  religious  belief,  and  though  as  a 
general  rule,  the  slave  did  not  obtain  personal  liberty,  yet  the 
distinct  attribution  of  legal  personality  and  capacity  for  rights, 
while  yet  in  a  servile  condition,  became  universal ;  while  at  the 
same  time  that  condition  became  judicially  attributable  to  tlie 
law  of  some  one  state  only,  or  to  some  jus  proprium,  and  was 
no  longer  a  status  equally  recognized  in  municipal  (internal) 
and  in  international  law.'  By  reverting  thus  to  the  ancient  doc- 
trines of  European  jurisprudence  it  might  perhajis  have  been 
held,  and  consistently  with  the  limits  of  the  judicial  function, 
not,  indeed,  that  the  baptized  or  converted  slave  acquired  free- 
dom, but  that  his  condition  of  servitude  was  referable  only  to 
the  juridical  action  of  some  one  state ;  and  that,  if  lawful  in  the 
place  of  his  domicil,  it  could  no  longer  be  internationally 
recognized  as  if  still  attributed  to  the  laio  of  nations. 

§  172.  From  this  it  appears  that,  admitting  that  the  slavery  of 
Africans,  Moors  and  Indians  could  not  be  supported  in  England 
or  the  colonics  under  the  law  of  villenage,"  it  would  be  a  ques- 
tion which  might  be  differently  answered  at  difi'erent  periods  be- 
tween the  first  planting  of  the  English  colonies  in  America  and 
the  end  of  the  18th  century,  whether  the  laio  of  nations,  en- 

J  See  aiUe,  §§  110,  113,  114.         "  See  ante,  §§  160-162,         *  See  ante  §  141. 


LAW    OF   NATIONS    IN    TIIE    LAW   OF   A   STATE.  171 

teriiig  into  the  common  law  of  England  as  a  judicially  received 
indication  of  natural  reason,  could  be  held  to  support  the  slavery 
of  Cliristianizcd  Moors,  negroes  or  Indians,  considered  either  as 
a  chattel  condition  or  as  a  relation  between  legal  persons. 

§  173.  While  the  general  principle  is  fully  relied  on,  that  the 
ordinary  juridical  usage  of  other  nations  is  properly  referred  to  by 
the  tribunals  of  any  one  state  or  nation,  administering  private 
law  as  the  will  of  the  state,  it  is  always  at  the  same  time  re- 
membered that  each  nation  or  political  possessor  of  sovereign 
power  is,  in  its  estimate  of  the  requirements  of  natural  reason, 
entirely  independent  of  the  opinion  of  other  similar  states  or 
persons.  And,  besides,  such  is  the  development  of  the  law  of 
nations,  that,  as  has  in  this  chapter  been  illustrated  in  the  his- 
tory of  the  Eoman  law,  and  as  has  been  explained  in  the  second 
chapter,  the  laio  of  nations  must,  in  any  state  wherein  hiws 
have  long  been  administered,  be  supposed  to  have  been  already  • 
applied  as  part  of  the  customary  law  of  that  state.  ^  It  is  hardly 
possible  to  conceive  the  jurists  or  the  judicial  officers  of  such  a 
state  as  deriving  a  rule  of  action  simply  from  the  practice  of 
foreign  states,  and  without  making  a  juristical  reference  to  some 
act  of  legislation,  or  precedent  of  local  authority,  indicating 
the  fact  that  such  law  of  nations  is  already  part  and  parcel  of 
the  law  of  the  land.  Especially,  since  it  is  to  be  remembered 
that  the  law  of  nations  is  mutable  ;  ^  that  it  changes  by  the  sev- 
eral action  of  different  nations,  acting  independently  of  each 
other,  it  becomes  the  duty  of  the  historical  jurist,  and  of  the  ju- 
dicial tribunal,  rather  to  look  for  a  part  of  their  national  com- 
mon law  as  being  the  state's  conception  of  universal  jurispru- 
dence, than  to  determine  what  is  the  doctrine,  on  any  one  point, 
most  commonly  received  by  certain  nations  whom  the  state  has 
recognized  as  juridical  guides. 

§  174.  Each  sovereign  state  or  nation  is  in  like  manner  inde- 
pendent of  every  earthly  power  in  the  acceptation  and  enforce- 
ment of  any  rule  which  may  be  attributed  to  Christianity. 
Though  some  principles  juridically  applied  by  European  nations 
may  be  attributed  to,  or  have  been  historically  derived  from, 

'  Ante  §§  94-97.  '  AiUe  §  39. 


172  CHKISTIANITY    IN    COMMON    LAW. 

the  Christian  code  of  morals,  their  legal  authority  must  depend 
upon  their  adoption  by  each  several  state  or  nation  as  a  rule  of 
action,  and  is  not  simply  asserted  by  its  judicial  tribunals  on 
their  own  recognition  or  perception  of  that  religion.  Though  it 
is  sometimes  said  that  Christianity  is  part  of  the  common  law 
of  England,'  yet,  what  rules  of  moral  conduct  are  to  be  taken 
to  have  the  effect  of  law  can,  by  a  tribunal  be  ascertained  only 
according  to  some  known  judicial  criterion.  It  is  not  what  the 
judge  shall  consider  a  requirement  of  Christianity,  nor  even 
what  some  church  may  promulgate  as  a  Christian  rule  of  duty, 
but  only  what  the  state  may  have  acknowledged  for  such.  The 
maxim,  that  Christianity  forms  part  of  the  common  law,  is  now 
(that  is,  at  a  period  when  the  law  of  England  has  so  long  ex- 
isted as  a  customary  law)  of  little  or  no  juridical  force.  Indeed 
when,  at  any  period  of  the  Christian  era,  Christianity  is  judi- 
•  cially  referred  to  as  an  indication  of  the  rules  of  natural  reason 
which  may  be  enforced  as  law,  on  a  presumjDtion  that  it  is  the 
will  of  the  state  to  make  it  a  coercive  rule  of  action,  it  cannot 
be  distinguished  from  the  law  of  nations  of  that  period  :  that  is, 
from  those  principles  which  all  Christian  nations  (gentes  mora- 
tiores)'  have  agreed  in  sustaining  with  the  force  of  positive  law. 
Otherwise  it  must  be  identified  with  the  conscience  of  the  tri- 
bunal, or  the  exposition  of  some  church  or  body  of  Christians.^ 
§  175.  But  whatever  may  have  been  the  principles,  affecting 
the  freedom  of  natural  persons,  which  in  the  judgment  of  the 
supreme  power  of  the  state  were  attributable  to  Christianity,  it 
cannot  be  supposed  that  if  that  supreme  power  gave  effect  in 
one  part  of  its  dominions  to  any  one  coercive  rule,  as  a  conse- 
quence of  that  doctrine,  it  should  make  a  contrary  rule  to  be 

'  Milton  in  his  Defensio  pro  Populo  Anglicano,  p.  103,  sars  that  "hy  the  laws  of 
Edward  the  Confessor,  it  was  a  fundamental  maxim  of  our  law,  which  I  have  formerly 
xpcntioned,  hy  wlaich  nothing  is  to  be  accounted  a  law  that  is  contrary  to  the  laws  of 
God,  or  Reason."  The  so-ca  led  laws  of  Edward  the  Confessor  are  probably  only  a  tra- 
ditionary view  of  the  common  law  of  his  time  ;  see  Hale's  Hist,  of  Com.  L.,  by  Rem- 
mington,  p.  .5,  n.  B.  Noy's  Maxims,  10, — "P^our  lessons  to  be  observed  where  con- 
trary laws  come  in  question.  1.  The  inferior  law  must  give  place  to  the  superior.  2. 
The  law  general  must  yield  to  the  law  special.  3.  Man's  laws  to  God's  laws.  ■!•.  An 
old  law  to  a  new  law."  The  recognition  of  the  law  of  God  as  supreme  is  made  in  every 
system  of  law.  But  if  the  state  is  the  expositor  ? — see  ante  §§  14—16.  The  legality  of 
slavery  in  England  before  the  Norman  coniiuc::t  has  been  noted  ante  §  143,  and  the 
doctrine  of  Neal  v.  Farmer,  §  167,  n. 

'  Ante  p.  33,  note.  '  Ante  §  101  and  note. 


LAW    OF    NATIONS    IN    ENGLISH    LAW.  178 

law  in  another  part.  It  does  not  follow  that,  if  the  supreme 
legislative  power  in  the  British  Empire  sanctioned  slavery  in 
one  part  of  its  dominions,  it  could  not,  or  did  not,  prohibit  it  in 
another.  But  it  must  be  presumed  that,  if  it  was  sustained  in 
any  one  part,  it  could  not  be  judicially  considered  illegal  in  the 
other,  on  the  ground  of  being  contrary  to  the  view  of  Christian 
morality  sustained  by  the  state.  If  Christianity  is  to  be  held 
part  of  the  common  law  of  England,  a  sanction  given  to  the 
slavery  of  Africans  or  negroes,  in  any  part  of  the  world,  is  a 
proof  that  the  state  did  not  at  that  time  regard  such  slavery  as 
contrary  to  Christianity,  or  as  being  for  that  reason  forbidden 
by  the  common  law.* 

The  question  in  this  point  of  view  is,  not  so  much  whether 
chattel  slavery  was  maintainable  under  the  local  customary  law 
of  England  ;  or  whether  it  was  maintained  by  statute  law,  either 
in  England  or  in  the  colonies,  or  in  both :  but  whether  it  was- 
recognized  at  all,  and  held  to  be  any  where  consistent  with  the 
moral  code  of  a  Christian  nation. 

§  176.  The  recognition  of  principles  having  the  character 
of  universal  jurisprudence  or  a  law  of  nations^  as  has  been 
slio\vn  in  the  second  chapter,  is  most  distinctly  made  in  the 
judicial  enunciation  of  private  international  law  :  that  is,  where 
the  customary  or  unwritten  law  of  the  country  is  applied  to  de- 
termine the  rights  and  obligations  of  private  persons,  in  those 
interests  and  actions  which  are  beyond  the  control  of  single 
states,'^  or  where  persons  are  recognized  as  sustaining  rights 
and  obligations  in  i*elations  which  have  become  existent  under 
the  juridical  and  legislative  power  of  some  foreign  state.' 

The  English  judicial  decision^  which  have  this  international 
bearing,  in  connection  with  African  slavery,  will  be  noticed 
hereafter. 

But  the  recognition  by  the  state  of  a  principle,  as  part  of 

'  Mr.  Hildreth,  (Hist.  U.  S.  vol.  2,  p.  427,)  commenting  on  juristical  opinions  in 
England,  1729-1750,  respecting  the  maintenance  of  slavery  in  England,  says,  "to 
avoid  overturning  slavery  in  the  colonies,  it  was  absolutely  necessary  to  uphold  it  in 
England."  This  is  not  correct:  though,  if  slavery  had  been  repudiated  in  England  on 
the  ground  that  it  was  contrary  to  Christianity,  or  the  law  of  God,  it  would  have  been 
necessary  to  infer  that  it  was  illegal  in  the  colonies;  that  is,  //'  the  law  of  England  aitd 
the  law  of  the  colony  proceeded  /rom  the  name  political  source. 

»  Ante,  §  10.  '  Ante,  §  68. 


174  STATUTES   OF  COMMERCE, 

the  law  of  nations^  may  be  shown  from  statutory  enactments. 
And  since  the  meaning  of  hinguage  is  a  thing  of  custom,  and 
known  l)y  reference  to  existing  facts,  the  words  of  a  statute  may 
indicate  the  law  of  nation.s,  on  some  point,  as  received  by  the 
state.  Especially  is  this  true  of  legislation  in  reference  to  mat- 
ters of  private  international  law,  or  matters  which  inijdy  a 
recognition  of  other  jurisdictions  and  sources  of  law.  And  this 
applies  both  to  the  action  of  the  legislative  and  the  judicial 
source  of  law.  The  use  of  terms  having  a  definite  meaning  in 
the  usage  and  practice  of  merchants,  which  is  a  particular 
brancli  of  the  private  international  law,'  may  be  equal  to  a  recog- 
nition of  that  usage  and  practice  as  universally  allowed,  or  as  a 
laio  of  nations^  especially  when  the  statutes  are  intended  to 
operate  on  the  intercourse  of  persons  subject  to  different  politi- 
cal sovereigns.  When  a  statute  of  1697,  8,  9,  and  10,  Wm.  3, 
c.  26,  entitled  "  An  Act  to  settle  the  trade  to  Africa,"  com- 
mences— "  Whereas  the  trade  to  Africa  is  highly  beneficial  and 
advantageous  to  this  kingdom,  and  to  the  plantations  and  colo- 
nies thereunto  belonging," — the  nature  of  that  "  trade  "  must 
be  explained  from  the  previous  history  of  commerce,  and  in 
accordance  with  the  "  custom  of  merchants  "  at  that  time.  And 
when  in  the  statute  "  negroes  "  are  spoken  of  as  the  objects  of 
that  trade,  the  extent  of  the  term  negroes  and  the  legal  nature 
of  their  condition,  then  spoken  of  as  objects  of  a  commercial 
enterprise,  must  be  explained  by  the  law  of  nations  then  ac- 
knowledged in  mercantile  affairs.  And  it  is  not  to  be  inferred 
that,  before  this  act  should  make  slavery  lawful  under  British 
jurisdiction,  provision  must  have  been  made  by  statute,  placing 
the  "  negroes  "  in  the  condition  of  chattels  or  of  persons  under 
involuntary  servitude.  A  historian  must  describe  sucli  an  act 
as  a  law  declaring  the  slave  trade  highly  beneficial  and  advan- 
tageous to  the  kingdom  and  its  colonies.' 

■  That  the  Imc  merchant  is  recognized  as  part  of  the  common  law  of  England,  aee 
Co.  Litt.,  2  Inst.,  c.  30. 

^  See  3  Banc,  p.  414  ;  and  compare  Lysander  Spooner,  on  the  Unconstitutionality 
of  Slavery,  p.  25.  It  may  be  admitted  that,  when  the  "  trade  to  Africa  "  was  first 
mentioned  in  English  public  Acts,  no  reference  was  had  to  slaves  as  articles  of  that 
trade.  The  association  of  the  slave  trade  with  that  branch  of  English  commerce  was 
gradually  formed  between  the  reign  of  Elizabeth  and  1662,  when  Charles  II.  incor- 
porated a  third  African,  or  Guinea,  company  which  undertook  to   supply  the  British 


THE   A88IENTO   TREATY.  176 

Treaties  are  as  much  juridical  acts  on  the  part  of  the  state  or 
sovereign  as  are  ordinary  statutes ;  though  the  objects  im- 
mediately conteniphited  may  be  beyond  the  roahn.  They  njay 
create  rights  and  obligations  which  the  national  courts  will  en- 
force. The  twelfth  article  of  the  Treaty  of  Utrecht,  July  13, 
1713,  between  Great  Britain  and  Spain,  granted  "  to  her  Brit- 
tanic  Majesty  and  to  the  company  of  her  subjects  established 
for  that  purpose,  as  well  the  subjects  of  Spain  as  all  others  being 
excluded,  the  contract  for  introducing  negroes  into  the  several 
parts  of  the  dominions  of  his  Catholic  Majesty  in  America  (com- 
monly called  El  Facto  del  Assiento  de  Negros),  for  the  space 
of  thirty  years."  And  the  same  section  grants  the  occupancy 
of  lands  near  the  Rio  de  la  Plata,  "  suitable  for  maintaining  the 
servants  of  the  said  company  and  their  negroes  (nigritas),  and 
for  safely  keeping  them,  the  said  negroes,  for  the  purpose  of 
being  sold." ' 

An  Act,  1749-1750,  23  Geo.  2,  c.  31,  entitled,  "  An  Act  for 
extending  and  improving  the  trade  to  Africa,"  which  begins, 
"  Whereas  the  trade  to  Africa  is  very  advantageous  to  Great 
Britain,  and  necessary  for  supplying  the  plantations  and  colo- 
nies, thereunto  belonging,  with  a  sufficient  number  of  negroes 
at  reasonable  rates,"  &c.,  must  be  taken  to  mean  that  the  negro 
slaves  brought  or  "  supplied,"  were  to  be  sold  at  reasonable 
rates.*  The  sale  and  disjjosal  of  negroes  as  articles  of  merchan- 
dise is  also  referred  to  as  one  of  the  objects  of  the  trade  in  sec. 
20  of  the  Act  of  1697,  wherein  "  governors,  deputy-governors, 
and  judges  are  forbidden  under  penalty  to  act  as  a  factor  or 
factors,  agent  or  agents,  for  the  said  company,  or  any  other  per- 
son or  persons,  for  the  sale  or  disposal  of  any  negroes."  And 
the  lawfulness  of  chattel  slavery,  of  negi'oes  bought  as  articles 
of  commerce  on  the  coast  of  Africa,  is  not  the  less  contem- 
plated, by  the  Act  of  1749-50,  because  in  the  twenty-ninth 
section  it  is  enacted — "  that  no  commander  or  master  of  any 

West  Indies  with  3,000  negroes  annually.  See  1  Hiine,  p.  297 — 311.  2  Anderson's 
Hist  Com.,  p.  627. 

'  Dnmont's  Corps  Diplomatique,  Tom.  viii.,  p.  395,  and  Wheaton's  L.  of  Nations, 
p.  586 ;  refers  Dumont,  Tom.  viii.,  2  me.  partie,  p.  344. 

*  "When  [about  1750]  the  exclusive  privileges  of  the  Royal  African  Company  ex- 
pired, the  English  government  undertook  to  maintain,  at  their  own  expense,  the  forts 
and  factories  on  the  African  coast,  and  the  trade  was  thrown  open."     2  Ilild.  427. 


176  NEGROES   IMPOKTED. 

ship  trading  to  Africa,  sliall  hy  fraud,  force,  or  violence,  or  by 
any  other  indirect  practice  whatsoever,  take  on  board,  or  carry 
a'vjay  from  the  coast  of  Africa  any  negro  or  native  of  said  coun- 
try, or  commit,  or  suffer  to  be  committed,  any  violence  on  the 
natives  to  the  prejudice  of  the  said  trade ; "  and  a  forfeiture  for 
such  action  is  declared.  For  though,  in  the  earliest  period  of 
the  intercourse  of  Europeans,  the  English  included,  with  the 
African  tribes,  negroes  were  kidnapped  or  piratically  seized  by 
force,  and  the  practice  had  perhaps  at  firet  been  considered 
lawful  by  the  law  of  natiojis,  the  common  opinion  of  Europeans, 
long  before  the  date  of  this  statute,  had  been  changed,  and  a 
distinction  made  between  the  legal  slavery  of  negroes  bought 
on  the  coast  from  African  slave-merchants,  and  the  condition  of 
such  stolen  captives.' 

S  177.  From  the  sanctioning:  a  trade  in  nejn*oes,  as  articles 
of  merchandise,  under  the  British  flag,  without  limiting  the 
trade  to  any  part  of  the  imperial  dominions,  it  would  be  a  just 
inference  that  the  possession  of  such  property  would  be  lawful 
in  England.  The  entr}'  of  such  property  into  England  is  con- 
templated in  the  first  of  the  above  acts,  sec.  7,  where  the  duties 
are  specified  "  which  shall  be  paid  at  the  place  of  importation 
upon  all  goods  and  merchandise  (negroes  excepted)  imported  in 
(into)  England,  or  any  of  his  majesty's  plantations  or  colonies  in 
America  from  the  coast  of  Africa ;  *  *  *  and  that  all  goods 
and  merchandise  (negroes  excepted)  that  shall  be  laden  or  put 
on  board  any  ship  or  vessel  on  the  coast  of  Africa,  betweeil 
Cape  Blanco  and  Cape  Mount,  and  shall  be  imported  into  Eng- 
land, or  into  any  of  his  majesty's  plantations  or  colonies  afore- 
said, shall  answer  and  pay  the  duties  aforesaid,"  &c. 

■  TMieaton :  Intemat.  L.,  p.  24,  and  Law  of  Nations,  p.  35,  cites  Soto  de  Justitia 
et  Jure  (A.  D.  1568),  Lib.  iv.,  Quaest.  ii.,  art.  2 :  "If  the  report  which  liaa  lately  pre- 
vailed be  true,  that  Portuguese  traders  entice  the  wretched  natives  of  Africa  to  the 
coa-st  by  amusements  and  presents  and  every  s^pecies  of  seduction  and  fraud,  and  com- 
pel them  to  embark  on  their  ships  as  slaves,  neither  those  who  have  taken  them,  nor 
those  who  buy  them  from  the  taker.*,  nor  those  who  possess,  can  have  safe  consciences, 
until  they  manumit  tliese  slaves,  however  unable  they  may  be  to  pay  ransom."  This 
is  indeed  only  the  opinion  of  a  private  man, — his  moral  judgment  of  what  is  right ; 
but  the  frequency  with  which  it  has  been  cited  by  jurists  gives  it  the  character  of  an 
exponent  of  the  juridical  intention  of  European  states. 

For  other  illustrations  of  this  distinction,  see  1  Hiine,  p.  300,  cites  Asthley's  Collec- 
tion, I,  160.  Post^ch  VI.,  Massachusetts,  1645.  3  Har.  &  McHen.  R,,  501,  and 
Wheeler's  Law  of  Slavery,  p.  IL 


NEGROES    IN    ENGLAND.  177 

§  178.  When  any  natural  person  had  been  brought  within 
some  European  territorial  jurisdiction,  as  a  slave,  it  would  be  a 
question, — what  was  the  nature  of  the  right  claimed  in  respect 
to  him,  and  wliat  persons  could  be  held  as  slaves, — whether 
heathen  Africans,  Moors,  or  Indians  only,  or  any  other  and 
what  races  of  men  ?  The  question  might  be  raised,  whether 
the  property  was  still  in  the  person  of  the  negro,  &c.,  or  in  the 
riglit  to  his  service  ?  The  question  would  be  of  the  nature, 
operation,  and  personal  extent  of  that  law  of  nations  under 
which  he  had  been  introduced  into  the  jurisdiction.  K  his 
slavery  were  sustained  by  that  law  while  a  heathen,  it  would 
then  be  a  question  whether,  after  conversion,  or  baptism,  his 
condition  was  determined  by  that  law,  either  to  be  that  of  a 
chattel  or  of  a  bondsman.  And  if  no  principle  of  the  law  of 
nations,  as  then  received,  determined  his  condition,  it  would  be 
then  a  question  whether  any  law  judicially  known  as  one  of 
national  origin  (jus  proprium,  §  152)  subjected  him  to  the  con- 
dition of  servitude. 

§  179.  The  recognition  of  a  principle  of  the  law  of  nations, 
under  the  juridical  power  of  some  one  state  or  nation,  is  made 
in  the  application  of  either  municipal  (internal)  or  international 
private  law ;  according  to  the  character  of  the  persons  whose 
relations  are  to  be  determined ;  that  is,  according  as  they  are 
regarded  simply  as  the  domiciled  inhabitants  of  the  jurisdiction, 
without  regard  to  the  existence  of  other  jurisdictions,  or  as 
persons  anteriorly  subject  to  the  juridical  power  of  some  other 
state. 

Assuming,  then,  that  the  only  natural  persons  who  could  be 
property,  or  could  be  held  in  involuntary  servitude,  by  the 
operation  of  universal  jurisprudence — the  law  of  nations — were 
negroes,  Moors,  or  Indians,  and  that  there  were  none  such  in 
England,  before  the  modern  extension  of  the  African  slave  trade 
during  the  period  in  which  the  colonies  were  planted  in  Amer- 
ica,'— the  question  of  the  legality  of  the  slavery  of  a  person  of 
that  description,  under  the  territorial  jurisdiction  of  the  law  of 

'  Barrington  on  Statutes,  time  of  1  PUch.  II., — a  chapter  to  be  noted  in  connection 
with  villenage,  as  well  as  chattel  slavery — cites  Hakluyt,  that  in  the  year  1.553,  four 
and  twenty  negroes  were  brought  into  England  from  the  coast  of  Africa. 

12 


178  QUESTION   OF   INTERNATIONAL   LAW. 

England,  would  be,  in  the  first  instance,  a  question  of  the  pri- 
vate international  law — the  law  determining  the  relations  of 
persons  entering  the  country  as  alien  to  its  jurisdiction.  For, 
whether  the  negro.  Moor,  or  Indian  were  brought  into  the  realm 
by  an  alien  or  by  a  domiciled  owner,  the  claim  of  that  owner 
would  be  a  question  of  that  character,  either  by  the  recog- 
nition of  the  alien  character  of  the  slave,  or  by  the  assertion  of 
the  legal  continuance  of  a  former  status  or  condition  resulting 
from  anterior  subjection  to  the  law  of  a  foreign  jurisdiction  ; ' 
presenting  a  question  of  the  so-called  "conflict  of  laws,"  and 
the  eifect  of  comity  as  a  rule  to  guide  judicial  tribunals.  But 
since  a  natural  person  who  had  been  a  slave  in  a  foreign  juris- 
diction could  have  no  proper  domicil,  distinct  from  that  of  his 
master  or  owner,  or  would  have  a  domicil  only  according  to  the 
intention  of  the  owner,  the  question  of  the  condition  of  such  a 
person  in  England  would  belong  to  the  international  law,  or  to 
the  municipal  (internal)  law,  according  to  the  purpose  of  the 
owner,  either  to  remove  him  to  the  foreign  jurisdiction  in  wliich 
he  had  been  held  in  slavery,  or  to  maintain  his  custody  and 
control,  in  England,  as  the  right  of  a  domiciled  inhabitant.' 

The  question,  as  presented  under  the  first  alternative,  will 
be  considered  in  another  chapter.  But  in  the  other  case,  where 
the  question  would  be  of  the  continued  servitude  of  such  negro. 
Moor,  or  Indian,  under  the  local  or  territorial  law  of  England, 
(if  his  status  or  condition  was  to  be  determined  independently 
of  any  statute,  that  is,  by  the  customary  or  common  law  alone,) 
it  would  still  be  necessary  to  determine — whether  the  law  of 
nations^  historically  known,  w^as  to  be  applied  as  part  of  that 
common  law,  acting  as  a  personal  law  on  the  condition  of  a 
certain  class  of  natural  persons  ; ' — whether  that  law  continued 
the  same  ;  and  whether  it  was  prevented  from  having  any  force 
by  reason  of  the  extent  of  rules  of  local  or  national  origin  (jus 
proprium)  having  contrary  efi'ect  upon  the  individual  and  rela- 
tive rights  of  private  persons.* 

§  180.  Tlie  question  of  the  possible  existence  of  involuntary 
servitude  under  the  law  of  England,  seems  to  have  been  from 

=  See  ante,  §  68,  the  note,  and  §  69.  '  Comp.  ante,  §  121. 

■'  See  ante,  §  111.  *  See  ante,  §  144. 


QUESTION    OF   nTTEKNAL   LAW,  179 

time  to  time  a  subject  of  judicial  inquiry  during  the  period  re- 
ferred to.  In  the  year  1640,  when  the  impeachment  of  the 
judges  of  the  Star-chamber  by  the  House  of  Commons,  in  be- 
half of  John  Lilburne,  went  up  to  the  House  of  Peers,  "  it  was 
urged  by  those  that  managed  the  same,  that  in  the  eleventh  of 
Elizabeth  one  Cartwright  brought  a  slave  from  Russia,  and 
would  scourge  him,  for  which  he  was  questioned ;  and  it  was 
resolved  that  England  was  too  pure  an  air  for  slaves  to  breathe 
in." ' 

^  Barrington,  on  the  Statutes,  5th  ed.  p.  313,  in  referring  to 
this*  remarks,  that  the  word  slave  is  used  in  1  Edw.  YI.  c.  3 
where  it  is  enacted  that  a  vagabond  and  idle  servant  shall  be^ 
come  a  slave  to  his  master.  But  the  3-4  Edw.  YL,  c.  6  ex- 
pressly repeals  so  much  of  that  act  "as  tendeth  to  make  vaga- 
bonds slaves."     (1  Bla.  Comm.  424.   Keble's  Statutes.) 

§  181.  The  question  of  the  lawfulness  of  the  slavery  of 
negroes  in  England  was  frequently,  after  this  date,  discussed  be- 
fore the  courts.  The  reports  are  meagre  in  stating  the  argu- 
ments upon  wliich  they  were  decided.  The  eariiest  of  these 
occurred  in  1677,  29  Car.  H.  in  B.  R.  Butts  vs.  Penny,  which 
in  2  Levmz,  201,  is  reported  as  follows. 

=„  \  ly^'^^\y^}\  ^^^^  Considering  the  time  at  which  W.  Harrison  wrote  1577— 
Lr.nr-P"^  '  '^  'I  HoHnshed,  his  statements  may  he  here  cited,  though  his  I^le 
does  not  insp.re  much  confidence.  He  says:  Hoi.  Chronicles,  Vol  I.  163  "  As  foJ 
slaves  and  bondmen  we  have  none,  naie  such  is  the  privilege  of  our  countrie  by  the 

Sr  T"^  "^  ^1'  ^"<^  ^T'''  °^  ''''  ^'^'''^  *^^*  'f  ^-^  ^-^^  hither  from  other 
realms,  so  soone  as  they  set  foot  on  land  they  become  so  free  of  condition  as  their  mal 

e'^bt^nof  tte  T  "^  ""t  '^f  T  "  ""^'^^  ^^''^'^  ^-°^  *^^-'  wherein  we 
resemble  (not  the   Germans,  who  had   slaves  also,  though  such  as  in  respect  of  the 

^auroblrl  1  ^°""^"^%-'g^'  -11  >  reputed  free,  b?t)  the  old  Indla'nTand  Z 
Taprobanes,  who  supposed  it  a  great  injurie  to  nature  to  make  or  suffer  them  to  De 
bond  whom  she  m  her  wonted  course  doth  product  and  brine  forth  free  " 
"  Tl,;/ /"*!!°'"  '"f?*!"'^^'  *!"'«  '°  ^  description  of  the  laboring  class,  of*  whom  he  say.: 
This  fourth  and  last  sort  of  peorde,  therefore,  have  neither  voice  nor  authority  in 
the  ^commonwealth,  but  are  to  be  ruled,  and  not  to  rule  other,'  &c  '^"^tiority  m 

dictun!  mfr^n^*;.'"  ?"1^°'^,1^  ^«°^^^«  ^^  *«  original  authority  for  this  celebrated 
Sr;n  ^"  f  !!''  ""  *^-    Pl^*:\^ited,  attributes  the  saying  to  Lilburne.     He  also 

Tnotln  ^'\'-^}''\''^l  ^'  saymg  with  regard  to  villein  "  tenures  in  the  same  rei^n,  that 
a  notion,  ongmally  inculcated  by  Wickliff  and  his  followers,  began  to  prevail  of  it« 
^lave^rdh'^'"-'^'   P^'^^'P]^^  of  tLe  Christian  religion  Ihat^any  onrsbould  b   a 

"  R.  <.f  ''''"•"°°  ^^"1  ^^""^^  ''  '""'^  ^°  ^^  ^■«"°d«'l  "P«»  Christianity  ;  "  and  adds, 
«ru}  ih  ■  •',  "f^'v*!"^  persuasion  contributed  greatly  to  the  abolishing  villenage  : 
and  the  principle,  whether  adopted  by  the  common  law  from  Christianitv,  or  other - 
th.!t'n.wr  .V  ^l  ""■  *^«??"'e"de<i  or  insisted  upon.  I  cannot,  however;  but  think, 
tfl.it  neither  the  Christian  rehgion,  nor  the  common  law,  ever  inculcated  such  a  tenet  • 


180  BDTT8   VS.    PENNY. 

"Trover  for  100  Neqroes^  and  upon  Nan  Culp.  it  was  found 
by  special  Verdict,  tliat  the  Negroes  were  Iniidels,  and  the 
Subjects  of  an  Infidel  Prince^  and  are  usually  bought  and  sold 
in  America  as  Merchandise,  by  the  Custom  of  Merchants,  and 
that  the  Plaintiff  bought  these,  and  was  in  possession  of  them 
until  the  Defendant  took  them.  And  Thompson  argued  there 
could  be  no  Property  in  the  Person  of  a  Man  sufficient  to  main- 
tain Trover^  and  cited  Co.  Lit,  116.'  That  no  Property  could 
be  in  Villains  but  by  Compact  or  Conquest.  But  the  Court 
held,  that  Negroes  being  usually  bought  and  sold  among  Mer- 
chants, as  Merchandise,  and  also  being  Intidels,  there  might  be 
a  property  in  them  sufficient  to  maintain  TroveTy  and  gave 
Judgment  for  the  Plaintiff,  nisi  Catcsa,  this  Terra ;  and  at  the 
end  of  the  Term,  upon  the  Prayer  of  the  Attotmey- General  to 
be  heard  as  to  this  Matter,  Day  was  given  until  next  Term." 

The  same  case  is  reported  in  3  Keble,  785,  thus : 

"  Special  Verdict  in  Trover  of  10  Negroes  and  a  half  find 
them  usually  bought  and  sold  in  India,  and  if  this  were  suffi- 
cient property  on  (for)  Conversion,  was  the  question.  And 
Thomson,  on  1  I?ist.  116,  for  the  Defendant,  said  here  could  be 
no  property  in  the  Plaintiff  more  than  in  Villains ;  but  per 
Curiam,  they  are  by  usage  tayiguam,  hona,  and  go  to  Adminis- 
trator until  they  become  Christians ;  and  thereby  they  are  In- 
franchised  :  And  Judgment  for  the  Plaintiff,  Nisi,  and  it  lieth 
of  moety  or  third  part  against  any  Stranger,  albeit  not  against 
the  other  Copartners."" 

§  182.  In  the  case  Chambers  vs.  "Warkhouse,  in  the  year 
1693,  4  Will,  and  Mary,  which  was  in  trover  for  dog- whelps, 
the  question  was  whether  they  could  be  property,  and  it  was 
said  by  the  court,  "Ti-over  lies  of  Musk-Cats  and  of  Monkies, 
because  they  are  Merchandise ;  and  for  the  same  Reason  it  has 

'  Where  villenage  is  described. 

"  20  Howell's  State  Tr.  52.  Mr.  Ilargrave  said  in  his  argument,  that  the  Roll 
of  this  case  had  been  examined  for  him  by  a  friend,  "  and  according  to  the  account  of 
it  given  to  me,  though  the  declaration  is  for  negroes  generally  in  London,  without  any 
mention  of  foreign  parts,  yet  from  the  special  verdict  it  appears  that  the  action  was 
really  brought  to  recover  tlie  value  of  negroes,  of  which  the  plaintiff  had  been  pos- 
sessed, not  in  England,  but  in  India.  Therefore,  this  case  would  prove  nothing  in 
favor  of  slavery  in  England,  even  if  it  had  received  the  Court's  judgment,  which,  how- 
ever, it  never  did  receive,  there  being  only  an  '  ulterius  consilium '  on  the  Roll " 


GELLT   VS.   CLEVE.  181 

he&n  adjudged,  that  Trover  lies  of  Negroes P   This  is  cited  in  the 
Biibseqiient  cases. 

§  183.  The  case  of  Gelly  vs.  Cleve  is  spoken  of  in  1  Ld.  Eay- 
mond,  147,  as  occurring  in  1694;  as  follows  : 

"  Hill.  5  Will.  &  Mar.  C.  B.  between  Gelly  and  Cleve,  ad- 
judged that  trover  will  lie  for  a  Negro  boy  ;  for  they  are  heath- 
ens, and  therefore  a  man  may  have  property  in  them,  and  that 
the  court,  without  averment  made,  will  take  notice  that  they 
are  heathens.    Ex  relatione  mh'i  Placed 

§  184.  The  case  in  1  Ld.  Kaymond,  147,  is  that  of  Chamber- 
layne  vs.  Harvey,  8  &  9  Will.  3,  1697,  which  is  there  given 
as  follows : 

Trespass  for  taking  of  a  Negro  pretii  100?.  Tlie  jury  find 
a  special  verdict ;  that  the  father  of  the  plaintiff  was  possessed 
of  this  Negro,  and  of  such  a  manor  in  Barhadoes,  and  that  there 
is  a  law  in  that  country,  which  makes  the  Negro  part  of  the 
real  estate ;  that  the  father  died  seized,  whereby  the  manor  de- 
scended to  the  plaintiff  as  son  and  heir,  and  that  he  endowed 
his  mother  of  this  Negro  and  of  a  third  part  of  the  manor  :  that 
the  mother  married  Watkins  who  brouglit  the  Negro  into  Eng- 
land, where  he  was  baptized  without  the  knowledge  of  the 
mother ;  that  Watkins  and  his  wife  are  dead,  and  that  the 
Negro  continued  several  years  in  England  ;  that  the  defendant 
seized  him,  &c.  And  after  argument  at  the  bar  several  times 
by  Sir  Bartholomew  Shower  of  the  one  side,  and  Mr.  Dee  of  the 
other,  this  term  it  was  adjudged  that  this  action  will  not  lie. 
Trespass  will  lie  for  taking  of  an  apprentice,  or  hceredem  apjpor 
rentem.  An  abbot  might  maintain  trespass  for  his  monk  ;  and 
any  man  may  maintain  trespass  for  another,  if  he  declares  with 
a  per  quod  servitium  amisit  /  but  it  will  not  lie  in  this  case. 
Kn^per  Holt  chief  justice,*  trover  will  not  lie  for  a  NegrO,  con- 
tra to  3  Keble  785,  2  Lev.  201,  Butts  vs.  Penny."  Then  follows 
the  reporter's  reference  to  Gelly  vs.  Cleve,  as  above  given. 

The  report  of  the  same  case  in  Carthew's  R.  396,  is, 

"  Trespass,  c&c,  for  that  the  Defendant  vi  (&  annis  unum 

'  Burge,  Vol.  I.  p.  736,  gives  as  the  report  of  the  Judges  upon  the  memorial  of 
the  African  Company  touching  the  Assieiito,  in  1689 — "  In  pursuance  of  his  Majesty's 
order  in  Council  hereunto  annexed,  we  do  lunnbly  certify  our  opinions  to  be  that 
negroes  are  merchandise,"  &c.     Signed  by  J.  Holt  and  others. 


182  CHAMBEBLAYNE   VS.    HARVEY. 

JEthiopem  {Anglice  vocat')  a  Negro  ipsius  querentis  pretii  1001. 
a/pud  London^  <Scc.  took  and  earned  away  and  kept  the  Plaintiff 
out  of  Possession  of  the  said  Negro  from  tliat  Time  usipie  diem 
exhihitionis  JBillcB  j^^aedicf  j>er  quod  he  (the  Plaintiff)  lost  the 
Use  of  his  said  Negro. 

"  Upon  not  guilty  pleaded,  the  Jury  gave  a  special  "Verdict, 
the  substance  whereof  was  as  followeth  : 

"  ss.  They  find  that  the  Negro  had  been  baptized  after  the 
Taking,  <&c.  and  the  matter  was  argued  upon  that  Point,  {viz.) 
"Whether  the  Baptism  was  a  Manumission^  and  as  to  that  the 
C&urt  gave  no  opinion. 

^''Sed  per  Cunam,  An  Action  of  Trespass  will  not  lie,  be- 
cause a  Negro  cannot  be  demanded  as  a  chattel,  neither  can  his 
Price  be  recovered  in  Damages  in  an  Action  of  Trespass,  as  in 
case  of  a  Chattel ;  for  he  is  no  other  than  a  slavish  Servant,  and 
the  master  can  maintain  no  other  Action  of  Trespass  for  taking 
his  Servant,  but  only  such  which  concludes  per  quod  servitium 
amisit,  in  which  the  master  shall  recover  for  the  Loss  of  his 
Service  and  not  for  the  Yalue,  or  for  any  damages  done  to  the 
Servant, 

"  Judgment  q^lod  querens  nil  capiat  per'  Billamr  Tlie 
pleadings  and  special  verdict  in  this  case  are  given  in  the 
third  volume  of  Ld.  Raymond,  p.  129.' 

§  185.  In  the  year  1705,  occurred  the  cases  of  Smith  vs. 
Brown  and  Cooper,  and  Smith  vs.  Gould,  the  first  of  which  is 
reported  in  2  Salkeld  m^  and  Holt's  R.  495.  The  report  as  in 
Salkeld  is, 

"  The  plaintiff  declared  in  indebitatus  assumpsit  for  20/.  for 
a  negro  sold  by  the  plaintiff  to  the  defendant,  viz.  in  parochia 
beatse  Marise  de  Arcubus  in  warda  de  Cheape,  and  verdict  for 
the  plaintiff;  and  on  motion  in  arrest  of  judgment,  Holt,  C.  J. 
held,  tliat  as  soon  as  a  negro  comes  into  England,  he  becomes 
free.  One  may  be  a  villein  in  England,  but  not  a  slave.  Et 
per  Powell,  J.  In  a  villein  the  owner  has  a  property,  but  it  is 
an  inheritance  ;  in  a  ward  he  has  a  properly,  but  it  is  a  chattel 
real ;  the  law  took  no  notice  of  a  negro.     Holt,  C.  J.     You 

'  The  arguments  of  counsel,  which  will  be  found  interesting,  are  given  in  the  re- 
port of  the  same  case,  5  Moi  R.  187. 


SMITH   VS.    BROWN   AND   COOPER.  183 

should  have  averred  in  the  declaration,  that  the  sale  was  in 
Virginia,  and,  by  the  laws  of  that  country,  negroes  are  sale- 
able ;  for  the  laws  of  England  do  not  extend  to  Virginia,  being 
a  conquered  country,  their  law  is  what  the  king  pleases ;  and 
we  cannot  take  notice  of  it  but  as  set  forth ;  therefore  he  di- 
rected the  plaintiff  should  amend,  and  the  declaration  should  be 
made,  that  the  defendant  was  indebted  to  the  plaintiff  for  a 
negro  sold  here  at  London,  but  that  the  said  negro  at  the  time 
of  sale  was  in  Virginia,  and  that  negroes  by  the  laws  and  sta- 
tutes of  Virginia,  are  saleable  as  chattels.  Then  the  attorney- 
general  coming  in  said  they  were  inheritances,  and  transferable 
by  deed,  and  not  without ;  and  nothing  was  done." 

Tlie  report  of  this  case  in  Holt's  K.  495,  is, 

"  In  an  Indebitatus  Assumpsit  the  Plaintiff  declared  for  20Z. 
for  a  negro  sold  to  the  Defendant,  in  the  Parish  of  the  Blessed 
Mainj  of  the  Arches  in  the  "Ward  of  Cheap  :  There  was  a  Ver- 
dict for  the  Plaintiff,  and  Motion  in  arrest  of  Judgment. 

"  Ilolt,  C.  J.  As  soon  as  a  Negro  comes  into  England  he 
becomes  free ;  and  one  may  be  a  villein  in  England ;  but  not 
a  slave :  You  should  have  averred  in  the  Declaration  that  the 
sale  of  the  Negro  was  in  Virginia,  and  by  the  laws  of  that 
country  Negroes  are  saleable ;  for  the  laws  of  England  do  not 
extend  to  Virginia,  and  we  cannot  take  notice  of  their  Law  but 
as  set  forth :  Therefore  he  ordered  the  Plaintiff  should  amend 
and  alter  his  Declaration,  that  the  Defendant  was  indebted  to 
him  so  much  for  a  negro  sold  here  at  London,  but  that  the  said 
negro  at  the  time  of  the  sale  was  in  Virginia ;  and  that  negroes 
by  the  Laws  and  Statutes  of  Virginia  may  be  sold  as  chattels. 

"  Powel,  J.  In  a  Villein  the  Owner  has  a  Property,  but  'tis 
an  Inheritance ;  the  law  takes  no  notice  of  a  Negro." 

Tlie  action  in  this  case  appears  to  have  been  for  money  on 
sale  of  a  negro,  being  in  Virginia,  where  it  was  admitted  sla- 
very was  lawful.  But  the  court  on  the  pleadings  held  itself 
bound  to  suppose  that  the  transaction  was  in  England,  and,  so 
viewing  it,  held  the  contract  without  consideration,  as  for  the 
purchase  of  what  could  not  be  an  article  of  commerce  by  the 
law  of  England.' 

'  Lord  Mansfield  said  in  Somerset's  case,  Loff  s  R.  17 :  "  Contract  for  sale  of  a  slave 


184  SMITU   vs.    GOULD. 

The  case  of  Smith  vs.  Gould  is  also  reported  in  2  Salkeld, 
666,  and  is  also  in  2  Ld.  Kaymond,  1274.  The  report  in  Salkeld 
is  mostly  of  the  argument  for  the  owner,  which  was  made  by 
the  reporter  as  counsel.  In  Ld.  Raymond  it  is :  "  In  an  action 
of  trover  for  a  7i€fjro,  and  several  goods,  the  defendant  let  judg- 
ment go  by  default  and  the  writ  of  inquiry  of  damages  was  ex- 
ecuted before  the  lord  chief  justice  Holt  at  Guildhall  in  Lon- 
don. Upon  which  the  jury  gave  several  damages,  as  to  the 
goods,  and  the  negy^o  ;  and  a  motion  as  to  the  negro  was  made 
in  arrest  of  judgment,  that  trover  could  not  lie  for  it,  because 
one  could  not  have  such  a  property  in  another  as  to  maintain 
this  action.  Mr.  Salkeld  for  the  plaintiff  argued,  that  a  negro 
was  a  chattel  by  the  law  of  the  plantations,  and  therefore  trover 
would  lie  for  him ;  that  by  the  Levitical  law  the  master  had 
power  to  kill  his  slave,  and  in  Exodus  xx.  ver.  21,  it  is  said,  he 
is  but  the  master's  money  ;  that  if  a  lord  confines  his  villein, 
this  court  cannot  set  him  at  liberty :  Fitz.  Villain  5,  and  he  re- 
lied on  the  case  of  JButts  and  Peiiny,  2  Lev.  201,  3  Keb.  785, 
as  in  point,  where  it  was  held,  trover  would  lie  for  negroes.  Sed 
non  allocatur.  For  per  totam  curiam  this  action  does  not  lie 
for  a  negro,  no  more  than  for  any  other  man ;  for  the  common 
law  takes  no  notice  of  negroes  being  different  from  other  men. 
By  the  common  law  no  man  can  have  a  property  in  another, 
but  in  special  cases,  as  in  a  villein,  but  even  in  him  not  to  kill 
him  :  so  in  captives  took  in  war,  but  the  taker  cannot  kill  them, 
but  may  sell  them  to  ransom  them :  there  is  no  such  thing  as  a 
slave  b  v  the  law  of  England.  And  if  a  man's  servant  is  took  from 
him,  the  master  cannot  maintain  an  action  for  taking  him,  unless 
it  is  laid  per  quod  servitium  amisit.  K  A.  takes  B.  a  french- 
man captive  in  war,  A.  cannot  maintain  an  action,  quare  cepit 
B.  captivum  suum  Gallicum.  And  the  court  denied  the  opinion 
in  the  case  oi Butts  and  P<?7?wy,  and  therefore  judgment  was 
given  for  the  plaintiff,  for  all  but  the  negro,  and  as  to  the  dam- 
ages for  him,  quod  querens  nil  capiat  per  hillamr 

In  Salkeld  the  court  is  made  to  speak  somewhat  differently 
as  to  an  action  for  taking  away  a  captive ;  saying  that  trespass 

is  good  here ;  the  sale  is  a  matter  to  which  the  law  properly  and  readily  attaches,  and 
will  maintain  the  price  according  to  the  agreement" 


PEARNE   V8.    LISLE.  185 

might  lie,  though  not  trover.  "  Sed  Curia  contra.  Men  may  be 
the  owners,  and  therefore  cannot  be  the  subject  of  property. 
Villenage  arose  from  captivity,  and  a  man  may  have  trespass 
quare  captivuni  smim  cepit,^  but  cannot  have  trover  de  gallico 
sue.  And  the  court  seemed  to  think  that  in  trespass  qtiare  cap- 
tivum  suvm  cepit,  the  plaintiif  might  give  in  evidence  that  the 
party  was  his  negro,  and  he  bought  him." 

§  186.  The  decision  in  Fearne  v.  Lisle,  1749,  Ambler's  E.  75, 
was  on  motion  before  the  Chancellor  to  discharge  a  ne  exeat  reg- 
no, the  plaintiff's  claim  being  founded  on  the  hire  for  certain 
negroes  then  held  by  the  defendant  in  Antigua.  The  writ  was 
discharged  on  the  ground  that  it  was  a  legal  demand  for  which 
the  defendant  might  be  arrested  at  law,  but  the  Chancellor 
(Yorke)  Lord  Hardwicke,  said  : 

"  As  to  the  nature  of  the  demand.  It  is  for  the  use  of  Ne- 
groes. A  man  may  hire  the  servant  of  another,  whether  he  be 
a  slave  or  not,  and  will  be  bound  to  satisfy  the  master  for  the 
use  of  him.  I  have  no  doubt  trover  will  lie  for  a  Negro  slave ; 
it  is  as  much  property  as  any  other  thing.  The  case  in  Salk. 
666,  was  determined  on  the  want  of  proper  description.'  It 
was  trover  p)'o  uno  Ethiope  vocat.  Negro,  without  saying 
slave ;  and  the  being  Negro  did  not  necessarily  imply  slave. 
The  reason  said  at  the  bar  to  have  been  given  by  Lord  C.  J. 
Holt,  in  that  case,  as  the  cause  of  his  doubt,  viz :  That  the  mo- 
ment a  slave  sets  foot  in  England  he  becomes  free,  has  no 
weight  in  it,  nor  can  any  reason  be  found,  why  they  should  not 
be  equally  so  when  they  set  foot  in  Jamaica,  or  any  other  Eng- 
lish plantation.  All  our  colonies  are  subject  to  the  laws  of  Eng- 
land, although  as  to  some  purposes  they  have  laws  of  their  own. 
Tliere  was  once  a  doubt,  whether,  if  they  were  christened,  they 
would  not  become  free  by  that  act,  and  there  were  precautions 
taken  in  the  colonies  to  prevent  their  being  baptized,  till  the 
opinion  of  Lord  Talbot  and  myself,  then  Attorney  and  Solicitor- 
General,  was  taken  on  that  point.  We  were  both  of  opinion, 
that  it  did  not  at  all  alter  their  state.'    There  were  formerly  vil- 

'  Register  BreTinm,  102  b.  (edition  1687)  gives  a  form — "quendam  H.  Scotum  per 
ipsum  W.  de  guerra  captum  tanquam  prisonem  suum." 

'  A  misrepresentation;  as  Mr.  Hildreth  very  justly  remarks:  Despotism  in  Am., 
p.  197. 

'  This  opinion  was,  properly  speaking,  on  a  qiiestion  of  private  international  law, 


186  8HANLEY   VS.    HAKVET. 

leins  or  slaves  in  England^  and  tliose  of  two  sorts,  regardant  and 
in  gross ;  and  although  tenures  are  taken  away,  there  are  no 
laws  that  have  destroyed  servitude  absolutely.  Trover  might 
have  been  brought  for  a  villein.  If  a  man  was  to  come  into  a 
court  of  record,  and  confess  himself  villein  to  another,  (which  is 
one  way  of  being  a  villein,)  what  the  consequence  would  be  I 
will  not  say,  but  there  is  no  law  to  abolish  it  at  this  time." 

§  187.  The  case  of  Shanley  vs.  Harvey,  1762,  2  Eden's  R. 
126,  was  by  an  administrator  against  Ilarvcy  a  negro,  certain 
trustees,  and  the  next  of  kin,  to  account  for  part  of  the  personal 
estate, — a  sum  of  money  given  shortly  before  death,  by  the  de- 
ceased, to  the  negro.  Among  the  circumstances  mentioned 
was — that  this  negro  after  having  been  brouglit  to  England  liad 
been  given  to  the  deceased,  "who  had  him  baptized,  and 
changed  his  name."  Tlie  claim  does  not  appear  to  have  been 
for  the  negro,  but  for  the  money  ;  and  the  question  to  have 
been  whether  he  was  capable  of  receiving  the  money  as  a  gift. 
The  whole  decision  is,  by  the  Lord  Chancellor,  Northington, 
"  As  soon  as  a  man  sets  foot  on  English  ground  he  is  free :  a 
negro  may  maintain  an  action  against  his  master  for  ill  usage, 
and  may  have  a  Habeas  Corpus  if  restrained  of  his  liberty." 

§  188.  It  will  be  noticed  that  most  of  the  cases  in  which  the 
above  decisions  were  made  were  in  trover ;  to  maintain  which 
it  was  essential  that  the  subject  of  the  action  should  be  property 
— goods  found  by  another  and  converted  to  his  use.  Now  it 
has  been  shown  that  a  condition  of  voluntary  servitude  may 

as  determining  the  relations  of  persons  domiciled  in  different  parts  of  one  empire,  and 
the  extent  or  jnrisdiction  of  the  law  supporting  slavery  in  the  colonies  ;  for  the  slaves 
referred  to  in  the  opinion  are  such  as  were  brought  into  England  by  persons  domiciled 
in  the  English  colonies  and  intending  to  return  thither  with  them.  In  this  view  it 
would  be  noticed  in  another  chapter.  But  it  will  be  given  here  because,  as  it  is 
worded,  it  would  seem  to  support  slavery  in  England,  as  the  condition  of  a  domiciled  in- 
habitant. It  is  taken  from  an  essay  published  in  London  by  Granville  Sharpe,  about 
the  year  1772. 

"  In  order  to  certify  a  mistake  that  slaves  become  free  by  their  being  in  England, 
or  being  baptized,  it  hath  been  thought  proper  to  consult  the  King's  Attorney  and  So- 
licitor General  in  England,  thereupon,  who  have  given  the  following  opinion  subscribed 
with  their  own  hands.  Opinion.  We  are  of  opinion  that  a  slave  by  coming  from 
the  West  Indies  to  Great  Britain  or  Ireland,  either  with  or  without  his  master,  doth  not 
become  free ;  and  that  his  master's  property  or  right  in  him  is  not  thereby  determined 
or  varied ;  and  that  baptism  doth  not  bestow  freedom  on  him,  nor  make  any  alteration 
in  his  temporal  condition  in  these  kingdoms.  We  are  also  of  opinion  that  the  master 
mav  legally  compel  him  to  return  again  to  the  Plantations.  June  14,  1729.  P. 
Yorke ;  C.  Talbot." 


I 

QUESTION    OF   CHATTEL   CHARACTER.  187 

be  supported  by  the  law  wbile  the  character  of  property,  or  a 
chattel  condition,  is  not  attributed  to  the  person  held  in  bondage. 
A  decision  that  trover  did  not  lie,  for  the  reason  that  slaves 
were  not  articles  of  commerce,  did  not  therefore  necessarily  in- 
volve the  conclusion  that  negroes  could  not  be  held  in  servi- 
tude in  England  in  the  same  manner  as  villeins  had  been ;  and 
the  claim  might  have  failed  only  because  the  proper  form  of 
remedy  had  not  been  resorted  to.  Thus  in  Smith  vs.  Gould, 
thouo-h  it  was  decided  that  trover  would  not  lie,  as  for  articles 
of  merchandise,  yet  "  the  court  seemed  to  think"  that  the  plain- 
tiii'  might  have  sustained  an  action  of  trespass  against  the  de- 
fendants for  depriving  him  of  a  person  held  by  him  as  a  cap- 
tive, even  if  he  had  acquired  his  rights  over  such  captive  by 
purchase.  So  in  Butts  vs.  Penny  the  objection  of  Tliompson, 
arguendo.,  was  against  the  form  of  action,  founded  on  the  theory 
of  a  finding  of  goods  or  chattels  ; — "here  could  be  no  property 
in  the  plaintiff  more  than  in  villeins." 

In  the  cases  where  trover  was  maintained,  it  appears  that 
the  court  did  not  look  for  an  act  of  legislation,  or  a  local 
custom,  or  a  custom  of  the  realm,  creating  that  property,  but 
referred  to  the  general  usage  or  custom  among  all  nations — 
the  custom  of  merchants.  Thus  in  Butts  vs.  Penny,  the  verdict 
found  that  negroes  were  usually  "  bought  and  sold  in  India,  and 
if  this  were  sufficient  property  for  conversion  was  the  ques- 
tion ;  "  and  the  court  said  "  they  are  by  usage  tanquam  bona," 
qualifying  it  with  the  addition,  that  when  they  became  Chris- 
tians they  would  be  enfranchised :  and  in  2  Lev.  201,  "  being 
usually  bought,"  &c.  So  in  3  Levinz,  336,  negroes  are  said  to 
be  merchandise  by  the  same  law  that  animals  are  known  to  be 
merchandise,  i.  e.  universal  usage.  Hardwicke  says  the  negro 
slave  is  "  as  much  property  as  any  other  thing ; "  and  what  are 
persons  and  what  things  is  decided  by  the  laio  of  natio?is  herein- 
before described  ;  that  is,  universal  jurisprudence  gathered  from 
the  general  custom  of  civilized  nations.  In  the  only  one  of  these 
decisions  which  declares  the  negro  to  be  a  freeman  upon  enter- 
ing England,  Smith  vs.  Brown  and  Cooper,  Holt  says  at  the  same 
time,  that  one  might  be  a  villein  in  England  though  not  a  slave. 
Tliis  language  must  be  taken  to  mean,  that  the  law  of  villenage 


188  THE   LEGAL   DISTINCTION. 

is  the  only  law  of  involuntary  servitude  in  England,  and  that 
this  law,  being  local  and  prescriptive,  could  not  apply  to  an 
African.' 

§  189.  According  to  Granville  Sharpe's  essay  many  instances 
had  occurred,  before  the  date  of  its  publication,  of  slaves  being 
bought  and  sold  in  London :  and  Dunning  states,  in  his  argu- 
ment for  the  master,  in  Somerset's  case  in  1772,  "from  the  most 
exact  intelligence  I  am  able  to  procure  there  are  at  present  here 
about  14,000  slaves." ' 

From  these  various  cases  of  the  actual  support  of  slavery  of 
negroes  in  England  between  the  years  1677  and  1772,  it  may 
be  gathered,  that  the  prevailing  legal  opinion  supported  the  doc- 
trine that  negroes  might  be  held  as  slaves  under  the  common 
law  of  England,  either  as  chattel  slaves,  or  persons  in  a  condi- 
tion of  involuntary  servitude. 

It  is  however  herein  claimed,  that  the  true  doctrine  on  this 
point,  resulting  from  the  principles  of  jurisprudence  herein-be- 
fore  set  forth,  was  this, — negroes  or  Moors,  and  Indians,  while 
heathen  and  barbarian,  could  be  held  in  chattel  servitude  as 
merchandise,  in  England,  by  the  judicial  recognition  of  natural 
reason  in  the  historical  laio  of  nations  /  forming  a  part  of  the 
common  law  of  England,  because  being  a  recognized  exposition 
of  natural  reason.*  But  upon  becoming  baptized  and  domiciled 
inhabitants  of  a  Christian  countr}',  they  became  recognized  as 
legal  persons,  either  by  the  law  of  nations  or  by  principles  de- 
rived from  Christianity  by  the  supreme  power  in  England,  and 

'  Molloy :  De  Jure  Maritimo,  London,  1744,  B.  3,  c.  i.  7.  "Though  Slavery  and 
Bondage  are  now  become  discontinued  in  most  parts  of  Christendom,  and  to  that  de- 
gree that  for  the  person  of  a  man,  be  he  Moor  or  other  Indian,  a  Trover  is  not  now 
maintainable  by  the  laws  of  England  " — citing  Salk.  666,  667 — goes  on  to  say  that 
there  may  be  a  lawful  bond  service  for  life. 

^  ^\  ade's  British  Chronol.  p.  833  :  "  Prior  to  this  judgment  (Somerset's  case)  the 
personal  traffic  in  slaves  resident  in  England  had  been  as  public  in  London  as  in  the 
West  India  Islands.  They  were  openly  sold  on  the  Royal  Exchange.''  By  Lord 
Stowell,  2  Hagg.  Adm.  R.  p.  105  :  "They  were  sold  on  the  Exchange  and  other  places 
of  public  resort  bj*  parties  themselves  resident  in  London,  and  with  as  little  reserve  as 
they  would  have  been  in  any  of  our  West  India  possessions.  Such  a  state  of  things 
continued,  without  impeachment,  from  a  very  early  period  up  to  nearly  the  end  of  the 
last  century." 

^  In  Neal  v.  Farmer,  9  Geo.  655-576,  the  court,  in  arriving  at  the  conclusion  that 
it  is  not  felony  at  common  law  to  kill  a  negro  slave,  is  greatly  embarrassed  by  assuming 
that  slavery  could  only  have  been  supported  in  England  by  the  law  of  villenage,  and 
yet  holding  that  it  had  a  legal  e\i^teIlce  in  Georgia  without  positive  legislation,  and 
as  property  recognized  by  "the  law  of  nations." 


SOMERSET'S    CASE.  189 

having  territorial  extent  therein  ; '  and  there  was  thereafter  no 
principle,  attributable  to  the  law  of  nations,  or  any  other  indi- 
cation of  natural  reason,  which  could  be  judicially  taken  to 
sustain  any  right  of  control  in  one  private  individual  over  an- 
other, irrespective  of  the  relations  of  the  family ;  and  the  local 
law  of  villenage  could  not  apply  to  persons  who  had  either 
themselves  come,  or  whose  immediate  ancestors  had  come  into 
England  from  abroad. 

Besides,  the  law  of  nations,  it  has  been  shown,  is  suscepti- 
ble of  change  {ante  §  39).  It  may  have  changed  in  Europe, 
during  the  period  between  the  date  of  the  last  of  these  decisions 
and  that  of  Somerset's  case,  from  thus  supporting  chattel  slavery 
to  denying  it  altogether.  It  will  be  difficult  for  a  judicial  tri- 
bunal to  discriminate  when  the  law  of  nations  thus  changes,  but 
after  a  lapse  of  years  it  may  be  easy  to  point  out  an  alteration. 
The  opportunities  to  do  this  occur  oftener  in  the  application  of 
international  law,  because  the  recognition  of  a  law  of  nations  is 
more  distinct  therein  than  in  the  application  of  municipal  or  in- 
ternal laws  {ante  §  101). 

§  190.  The  decision  of  the  King's  Bench  in  1772,  in  favor  of 
the  freedom  of  the  negro  James  Somerset,  might  have  been 
maintained  upon  the  doctrine  just  stated.  Tlie  question  arising 
in  that  case  was  more  properly  an  international  or  quasi-mi^r- 
national  one ; — a  question  under  the  private  international  law 
existing  between  different  jurisdictions  of  the  British  Empire, 
which  will  form  the  subject  of  a  separate  chapter  (ch.  vii.) :  the 
owner  of  the  negro  being  still  the  domiciled  inhabitant  of  a 
colony,  and  the  question  of  the  domicil  of  the  negro  being  de- 
pendent on  that  of  his  condition.  But  it  does  not  appear  that 
in  the  view  of  the  court  the  case  was  affected  by  this  circum- 
stance, and  the  language  of  the  decision  would  apply  with  the 
same  force  to  parties  supposed  to  have  a  domicil  in  England. 

The  judgment  finally  pronounced  by  Lord  Mansfield  in  this 
case,  June  22,  1772,  is  thus  given  in  Loft's  R.,  p.  18  : ' — 

"  On  the  part  of  Somerset,  the  case  which  we  gave  notice 

'  There  appears  to  be  a  recognition  of  this  principle  in  Home's  Mirrour,  o.  2,  sec. 
28.  "  Villeins  become  free  many  ways  ;  some  by  baptism,  as  those  Saracens  who  are 
taken  by  Christians  or  bought,  and  brought  to  Christianity  by  grace." 

'  See  also  the  report  in  20  Howell's  State  Trials,  p.  1. 


190  Mansfield's  decision. 

should  be  decided  this  day,  the  court  now  proceeds  to  give  its 
opinion.  I  shall  recite  the  return  to  the  writ  of  haheas  corpus^ 
as  the  ground  of  our  determination  ;  omitting  only  words  of 
form.  The  captain  of  the  ship,  on  board  of  which  the  negro  was 
taken,  makes  his  return  to  the  writ  in  terms  signifying  that  there 
have  been  and  still  are,  slaves  to  a  great  number  in  Africa ;  and 
that  the  trade  in  them  is  authorized  by  the  laws  and  opinions 
of  Virginia  and  Jamaica ;  that  they  are  goods  and  chattels ; 
and  as  such  saleable  and  sold.  Tliat  James  Somerset  is  a  negro 
of  Africa,  and  long  before  the  return  of  the  king's  writ  was 
brought  to  be  sold,  and  was  sold  to  Charles  Stewart,  Esq.,  then 
in  Jamaica,  and  has  not  been  manumitted  since ;  that  Mr. 
Stewart,  having  occasion  to  transact  business,  came  over  hither 
with  an  intention  to  return,  and  brought  Somerset  to  attend  and 
abide  with  him,  and  to  carry  him  back  as  soon  as  the  business 
should  be  transacted.  That  such  intention  has  been  and  still 
continues ;  and  that  the  negro  did  remain  till  the  time  of  his 
dejjarture  in  the  service  of  his  master,  Mr.  Stewart,  and  quitted 
it  without  his  consent ;  and  tliereu|>on,  before  the  return  of  the 
'icing's  wrif,  the  said  Charles  Stewart  did  commit  the  slave  on 
board  the  Ann  and  Mary,  to  save  custody,  to  be  kept  till  he 
should  sail,  and  then  to  be  taken  with  him  to  Jamaica,  and 
there  sold  as  a  slave.  And  this  is  the  cause  why  he,  Captain 
Knowles,  who  was  then  and  now  is  commander  of  the  above 
vessel,  then  and  now  lying  in  the  river  of  Thames,  did  the  said 
negro,  committed  to  his  custody,  detain ;  and  on  which  he  now 
renders  him  to  the  orders  of  the  court.  We  pay  all  due  atten- 
tion to  the  opinion  of  Sir  Philip  Yorke,  and  Lord  Chief  Justice 
Talbot,  whereby  they  pledged  themselves  to  the  British  planters, 
for  all  the  legal  consequences  of  slaves  coming  to  this  kingdom 
or  being  baptized,  recognized  by  Lord  Ilardwicke,  sitting  as 
chancellor,  on  the  19th  of  October,  1749,  that  trover  would  lie ; 
that  a  notion  had  prevailed,  if  a  negro  came  over,  or  became  a 
Christian,  he  was  emancipated,  but  no  ground  in  law ;  that  he 
and  Lord  Talbot,  when  Attorney  and  Solicitor-General,  were  of 
opinion,  that  no  such  claim  for  freedom  was  valid  ;  that  though 
the  Statute  of  Tenures  had  abolished  villains  regardant  to  a 
manor,  yet  he  did  not  conceive  but  that  a  man  might   still 


INCONSISTENCIES    IN   TUE   OPINION.  191 

become  a  villain  in  gross  by  confessing  himself  such  in  open 
court.  We  are  so  well  agreed  that  we  think  there  is  no  occasion 
of  having  it  argued  (as  I  intimated  an  intention  at  first)  before 
all  the  judges,  as  is  usual,  for  obvious  reasons,  on  a  return  to  a 
habeas  corpus;  the  only  question  before  us  is,  whether  the  cause 
in  the  return  is  sufficient  ?  If  it  is  so,  the  negro  must  be  re- 
manded ;  if  it  is  not,  he  must  be  discharged.  Accordingly,  the 
return  states,  that  the  slave  departed  and  refused  to  serve ; 
whereupon  he  was  kept,  to  be  sold  abroad.  So  high  an  act  of 
dominion  must  be  recognized  by  the  law  of  the  country  where 
it  is  used.  The  power  of  a  master  over  his  slave  has  been  ex- 
tremely different  in  different  countries.  Tlie  state  of  slavery  is 
of  such  a  nature  that  it  is  incapable  of  being  introduced  on  any 
reasons,  moral  or  political ;  but  only  by  positive  law,  which 
preserves  its  force  long  after  the  reasons,  occasion,  and  time 
itself,  from  whence  it  was  created,  is  erased  from  memory.  It 
is  so  odious,  that  nothing  can  be  suffered  to  support  it  but  posi- 
tive law.  Whatever  inconveniences,  therefore,  may  follow  from 
a  decision,  I  cannot  say  this  case  is  allowed  or  aj^proved  by  the 
law  of  England  ;  and  therefore  the  black  must  be  discharged." 
§  191.  However  correct  the  decision  of  the  court  may  have 
been  in  declaring  that  the  negro  could  not  be  held  in  slavery  in 
England,  the  arguments  given  in  support  of  it  by  Lord  Mans- 
field are  open  to  obvious  criticism  under  well-established  princi- 
ples. Admitting  that  the  statutes  and  public  acts  relatiJig  to 
the  commerce  in  negroes  were  not  operative  in  England,  and 
that  there  was  no  ^'•positive  law^''  meaning  positive  legislation, 
to  sustain  the  servitude  of  the  negro  in  this  case,  the  reason 
given,  for  not  sustaining  it,  is  not  a  good  judicial  reason.  Lord 
Mansfield  says — "  the  state  of  slavery  is  of  such  a  nature  that 
it  is  incapable  of  being  introduced  on  any  reasons,  moral  or 
political."  If  he  intended  to  say  that  the  moral  and  political 
reasons  against  slavery  were  such  that  even  positive  legislation, 
intending  to  produce  it,  was  not  to  be  sustained ;  that  it  was 
contrary  to  a  law  of  nature  which  must  be  presupposed  in  all 
legislation,  and  which  limited  the  highest  power  in  the  state, — 
(that  is,  a  law  in  the  secondary  sense — a  necessary  condition  of 
things),  then  it  was  superfluous  and  contradictory  to  say  "  that 


192  man6I'7eld's  false  position. 

it  could  only  be  introduced  by  positive  law," — "  it  is  so  odious 
that  nothing  can  be  suffered  to  support  it  but  positive  law," — 
that  "  so  high  an  act  of  dominion  must  be  recognized  by  the 
law  of  the  country  where  it  is  used  ;  "  for  had  tliere  been  such 
an  act  of  legislation,  it  would,  by  this  reasoning,  have  been 
void  and  inoperative.'  If  he  intended  to  say  that  there  were  no 
moral  or  political  reasons  to  his  mind  for  such  a  law,  if  it  was 
in  existence,  or  for  its  introduction  by  the  legislative  power, — 
that  was  beyond  liis  province  as  a  judge.  Tlie  question  was  not 
of  its  iutn)diiction,  but  of  its  existence.  The  reasoning  of  Lord 
Mansfield  in  this  case  would  have  been  equally  good  for  a  judge 
in  the  colonies,  and  would  have  annihilated  slavery  in  British 
America  also,  Tlie  historical  origin  of  that  slavery  was  entirely 
overlooked  when  he  declared  "that  it  could  not  be  judicially 
recognized  any  where  unless  supported  by  positive  law"; — that 
is,  supposing  him  to  have  intended  positive  legislation  by  the 
term  "positive  law."  Tliat  proposition,  which  has  since  this 
decision  been  the  text  for  so  many  essays  in  England  and  Amer- 
ica, is  in  direct  contradiction  to  the  M'hole  history  of  chattel 
slavery  in  every  country  where  it  has  existed :  for,  as  has  been 
shown  in  this  chapter,  it  has  always  originated  through  a  judi- 
cial recognition  of  natural  reason,  and  of  universal  jurispru- 
dence, or  the  historical  law  of  nations^  taking  effect  as  inter- 
national and  municipal  law,  because  an  exposition  of  natural 
reason  which  must  be  presumed  to  be  received  by  the  state 

'  The  language  of  the  court  in  this  case  is  an  illustration  of  the  remark  of  Savigny: 
Vocation  of  our  Age  for  Legislation  and  Jurisprudence,  Hajward's  Transl.,  p.  136  : 
*'  Thus  it  appears,  that  when  old  nations  reflect  how  many  peculiarities  of  their  law 
have  already  dropped  off,  they  easily  fall  into  the  error  just  mentioned,  holding  all  the 
residue  of  their  law  to  be  a  jus  quod  naturahs  ratio  apud  omnes  homines  constituit." 
(See  also  p.  134  of  the  same  treatise.)  If  Lord  Mansfield  professed  to  recognize  a 
universal  jurisprudence,  distinct  from  that  peculiar  to  his  own  country,  deriving  it  from 
the  concurrent  testimony  of  civilized  nations  or  of  reasoning  mankind, — and  it  will  be 
admitted  that  he  did  so,  if  ever  an  English  judge — it  would  be  important  to  know  whom 
be  considered  mitions,  or  whom  reasoning,  or  reasonable,  men.  It  is  related  of  him 
that  he  once  said  in  debate,  alluding  to  Otis'  Essay  on  the  Rights  of  the  Colonies,  that 
'•he  seldom  looked  into  such  things:  though  in  Chamberlain  of  London  vs.  Allen 
Evans,  ill  the  House  of  Lords,  he  expressed  his  admiration  of  President  De  Thou's 
dedication  of  his  history,  which  he  said  he  never  could  read  without  rapture."  (See 
North  American  Re\-iew,  Jan'y,  1826,  p.  183.  Life  of  J.  Quincy,  jr.)  It  would  ap- 
pear, therefore,  that  he  had  some  private  rule  to  measure  authorities  on  the  concurrent 
testimony  of  mankind,  which  may  not  be  orthodox  with  all  who  quote  his  opinions, 
and  that  he  thought  that  some  persons  and  nations  were  not  entitled  to  have  an 
opinion. 


EFFECT  OF  SOMERSET'S   CASE.  193 

promulgating  law  as  aj^iral  rule;  and  it  has  very  rarely,  if  ever, 
been  originally  established  in  a  country  by  positive  legislative 
enactment. ' 

Tlie  true  nature  of  this  decision,  and  its  force  as  a  juridical 
precedent  in  the  colonies,  will  be  noticed  in  another  chapter. 
Whatever  may  be  thought  of  the  arguments  by  which  it  is  sup- 
ported, its  efficacy  in  determining  the  question,  as  one  of  the 
efl'ects  of  the  municipal  law  of  England,  must  be  admitted  : 
followed  as  it  has  been  by  so  long  a  period  of  continued  ap- 
proval :  and  the  doctrine  taken  to  be  established,  that  in  Eng- 
land no  person  can  be  held  in  involuntary  servitude  unless  by 
the  force  of  some  statute. 

*  Mr.  Seward,  in  his  speech  in  the  U.  S.  Senate,  March  11,  1850,  (Works,  vol.  I., 
p.  80,)  says  :  "  Slavery  has  never  obtained  any  where  by  express  legislative  authority, 
bnt  always  by  trampling  down  laws  higher  than  any  mere  mimicipal  laws — the  law  of 
nature  and  of  nations."  The  fact  that  it  has  so  "  obtained,"  that  is — has  become 
recognized  as  lawful — without  "  express  legislative  authority,"  is  the  best  possible  proof 
that  its  existence  is  accordant  with  "  the  law  of  nature  and  of  nations : "  unless  the 
individual  moral  judgment  of  the  speaker  is  the  standard  of  "  laws  higher  than  any 
mere  municipal  laws.' 

NoTE.-^In  the  case  of  the  slave  Grace,  (1827,)  2  Hagg.  R.,  p.  105,  (Scott,)  Lord 
Stowell  said  :  "  It  appears  that  Lord  Mansfield  was  extremely  desirous  of  avoiding  the 
necessity  of  determining  the  question :  he  struggled  hard  to  induce  the  parties  to  a 
compromise,  and  said,  he  had  known  five  cases  so  terminated  out  of  six ;  but  the 
parties  were  firm  to  their  purpose  in  obtaining  a  judgment,  and  Lord  Mansfield  was  at 
last  compelled,  after  a  delay  of  three  terms,  to  pronounce  a  sentence  which,  followed 
by  a  silent  concurrence  of  the  other  judges,  discharged  this  negro  ;  thereby  establish- 
ing that  the  owners  of  slaves  had  no  authority  over  them  in  England,  nor  any  power 
of  sending  them  back  to  the  colonies.  Thus  fell,  after  only  two  and  twenty  years,  in 
which  decisions  of  great  authority  had  been  delivered  by  lawyers  of  the  greatest  ability 
in  this  country,  a  system,  confirmed  by  a  practice  which  had  obtained,  without  excep- 
tion, ever  since  the  institution  of  slavery  in  the  colonies,  and  had  likewise  been  sup- 
ported by  the  general  practice  of  this  nation,  and  by  the  public  establishment  of  its 
government,  and  it  fell  without  any  apparent  opposition  on  the  part  of  the  public. 
The  suddenness  of  this  conversion  almost  puts  one  in  mind  of  what  is  mentioned  by  an 
eminent  author,  on  a  very  diflFerent  occasion,  in  the  Roman  History,  '  Ad  primum  nun- 
tium  cladis  Pompeianse  populus  Romanus  repente  factas  est  alias: '  the  people  of 
Borne  suddenly  became  quite  another  people. 

"  The  real  and  sole  question  which  the  case  of  Somerset  brought  before  Lord  Mans- 
field, as  expressed  in  the  return  to  the  mandamus,  was,  whether  a  slave  could  be  taken 
from  this  country  in  irons  and  carried  back  to  the  West  Indies,  to  be  restored  to  the 
dominion  of  his  master  ?  And  all  the  answer,  perhaps,  which  that  question  required 
was,  that  the  party  who  was  a  slave  could  not  be  sent  out  of  England  in  such  a  man- 
ner, and  tor  such  a  purpose  ;  stating  the  reasons  of  that  illegality.     It  is  certainly  true 


194  THE   DOCTRINE   CRITICISED. 

that  Lord  Mansfield,  in  his  final  judgment,  amplifies  the  subject  largely.  He  cxtenda 
his  observations  to  the  foundation  of  the  whole  system  of  the  slavery  code ;  for  m  one 
passage  he  says  '  that  slavery  is  so  odious  that  it  cannot  be  established  without  posi" 
tive  law.'  Far  from  me  be  the  presumption  of  questioning  any  obiter  dirtinn  that  fell 
from  that  great  man  upon  that  occasion ;  but  I  trust  that  I  do  not  depart  from  the 
modesty  that  belongs  to  my  situation,  and  I  hope  to  my  character,  when  I  observe  that 
ancient  custom  is  generally  recognized  as  a  just  foundation  of  all  law ;  tliat  villenage 
of  both  kinds,  which  is  said  by  some  to  be  the  prototype  of  sla%'ery,  had  no  other  origin 
than  ancient  custom  ;  that  a  great  part  of  the  common  law  itself  in  all  its  relations, 
has  little  other  foundation  than  the  same  custom,  and  that  the  practice  of  slavery,  as 
it  exists  in  Antigua  and  several  other  of  our  colonies,  though  regulated  by  law,  has 
been  in  many  instances  founded  upon  a  similar  authority." 

On  one  of  the  trials  of  the  case  of  Oliver  vs.  "Weakly,  in  the  U.  S.  Circuit  Court,  a 
;ase  for  harboring  runaway  slaves,  Mr.  Justice  Grier  said  : — "  On  tliis  subject  Lord 
Mansfield  has  said  some  very  pretty  things,  (in  the  case  of  Somerset,)  which  are  often 
quoted  as  principles  of  the  common  law.  But  they  will  perhaps  be  found,  by  exami- 
nation of  later  cases,  to  be  classed  with  rhetorical  flourishes  rather  than  legal  dogmas." 
Newspaper  Rep.,  and  see  American  Law  Register,  vol.  L     PLDadelphia,  1853. 


-^ 


CHAPTER  V. 

THE  ESTABLISHMENT  OF  MUNICIPAL  LAW  IN  THE  COLONIES, THE 

SUBJECT  CONTINUED.  PKINCIPLES  DETEKMINING  THE  CONDI- 
TION OF  PEKSONS  TO  WHOM  THE  LAW  OF  ENGLAND  DID  NOT 
EXTEND  AS  A  PEKSONAL  LAW. 

§  192.  Although  the  various  rights  and  liberties  which  were 
known  to  the  law  of  England  as  the  privileges  and  immu- 
nities of  a  subject  of  English  birth,  and  which  are,  in  the  third 
chapter,  supposed  to  have  been  attributed  to  the  English  colo- 
nists in  America,  are  ascribed  in  that  law  to  an  origin  in  natural 
reason,  being  often  juridically  called  "  the  natural  rights  of 
Englishmen,"  their  legal  existence  and  enjoyment  is  still  de- 
pendent on  the  sovereign  will  of  the  state  ;  because,  as  has 
been  shown  in  the  first  chapter,  there  is  no  natural  rule  having 
the  force  and  power  of  law  in  juridical  recognition,  except  as  it 
forms  part  of  the  positive  law — the  law  resting  on  the  will  of 
some  sovereign  political  state  or  nation.'  The  legal  conditions 
or  status  of  private  persons,  under  any  national  jurisdiction, 
whether  determined  by  municipal  (internal)  or  international  law 
as  before  defined,  are,  within  that  jurisdiction,  judicially  held  to 
be  in  accordance  with  natural  reason,  however  widely  the  rela- 
tions in  which  they  consist  may  difier  from  those  known  to  other 
jurisdictions.  This  is  a  result  of  the  jural  character  of  the 
state.  But  however  natural  they  may  be  in  an  ethical  point 
of  view,  that  is,  however  consistent  with  the  essential  conditions 

'  Ante,  §§  7,  8,  16. 


196  EXTENT   OF   COMMON    LAW. 

of  human  existence,  these  relations  can  be  judicially  known  in 
any  jurisdiction,  (i.  e.,  any  territory  wherein  laws  are  judiciaUy 
enforced,)  only  by  a  previous  recognition  of  law  in  the  ascer- 
tained will  of  some  state  or  national  sovereignty,  and  of  certain 
persons  as  its  subjects,  or  as  persons  bound  by  its  provisions. 
This  law  must  be  known  both  as  territorial  law — law  operating 
within  certain  geographical  limits,  and  as  personal  law — law 
operating  on  certain  persons  throughout  the  dominion  of  a  cer- 
tain national  sovereignty.' 

§  193.  It  is  for  this  reason  that  common  law  rights,  or  liber- 
ties, of  private  persons,  though  necessarily  taken  to  be  accordant 
with  natural  reason  when  attributed  to  persons  bom  in  England, 
were  not  judicially  attributed,  in  the  colonies,  as  by  a  personal 
law,  except  to  those  who  had  acquired  those  rights  as  jural 
rights  under  the  territorial  law  of  England  ;  that  is  to  say, 
subjects  of  English  birth,  and  those  aliens  to  whom,  by  inter- 
national treaties,  the  terms  of  patents  and  charters  for  the  plan- 
tations, and  statutes  of  naturalization,  the  same  personal  law 
had  been  extended.'^  And,  since  wherever  laws  of  privilege  or 
of  disability  have  applied  as  personal  laws  they  have  generally 
an  hereditable  character,  or  are  the  law  of  a  family  as  well  as  an 
individual,  the  same  law  of  condition  would,  perhaps,  on  prin- 
ciples of  common  law  origin,  have  continued  to  have  a  personal 
extent  to  their  descendants.^  The  claim  of  the  descendants  of 
English  colonists  to  the  benej&ts  of  the  same  personal  law  was, 

•  See  ante,  §  26. 

*  Campbell  vs.  Hall,  Cowp.  208.  "  The  law  and  legislative  government  of  everj 
dominion  equally  affects  all  persons  and  all  property  within  the  limits  thereof,  and  is 
the  rule  of  decision  for  all  questions  which  arise  there.  Whoever  purchases,  lives,  or 
sues  there,  puts  hunself  under  the  laws  of  the  place."  It  is  true  that  "the  law  and 
legislative  power  "  has  equal  authority  in  respect  to  all  persons  and  things,  but  it  is  not, 
in  its  operation,  the  same  rule  for  alL  Lord  Mansfield  said  in  continuation  of  the 
above, — "  An  Englishman  in  Ireland,  Minorca,  the  Isle  of  Man,  or  the  Plantations, 
has  no  privilege  distinct  from  the  natives."  This  certainly  could  not  have  been  said  of 
the  Indian  territories  of  the  empire,  where  the  ancient  laws  applied  to  the  native 
races.     Compare  Sir  William  Jones'  various  charges,  in  Calcutta,  in  vol.  3,  Works,  4to. 

'  The  common  law  has  been  called  "  the  greatest  inheritance  that  the  king  and  the 
subject  have."  SeeBowjer's  Univ.  Pub.  Law,  p.  10, — "The  common  law  is  our  birth- 
right and  inheritance," — Story  Commen.  §  157, — "  Freedom  *  *  the  inheritance  of 
the  inhabitants  and  their  children,  as  if  they  were  treading  the  soil  of  England." — 2 
Barn,  and  Cress.,  463.  "  The  laws  of  England  are  the  birthright  of  the  people 
thereof"— Stat.,  12  &  13  Will.  III.,  c.  2,  The  Act  of  Settlement.  "According  to  the 
ancient  doctrine  of  the  common  law." — 1  Bl.  Comm.  128,  notes  Plowden. 


ITS  NATIONAL  AND  PERSONAL  EXTENT.        197 

however,  as  before  shown,  independently  secured,  by  positive 
legislation,  in  the  charters. 

When  this  law  of  personal  rights  and  liberties  acquired  also 
the  character  or  extent  of  a  territorial  law  in  America,  its  au- 
thority as  stick  was,  strictly  speaking,  correspondent  with  the 
territorial  limits  of  the  separate  colonies  ;  being  a  territorial 
law  for  each  singly  ;  resting  therein  on  the  sovereignty  vested 
in  the  local  government  and  the  Crown,  or  the  Crown  and  Par- 
liament, legislating  for  that  colony  only.'  Though,  since  the 
rights  and  privileges  secured  by  this  law  had  a  like  legal  re- 
cognition in  any  part  of  the  British  empire,  it  had  a  certain 
general  territorial  extent  also  throughout  all  the  colonies.  But 
this  took  place,  properly  speaking,  by  reason  of  its  personal 
character,  and  by  its  taking  effect  as  a  qtiasi  international 
private  law  between  those  several  jurisdictions  ;  as  will  herein- 
after be  more  particularly  shown. 

§  194.  In  the  various  recognitions  of  the  liberties  of  the 
colonists,  which  may  be  found  either  in  patents  and  charters,  or 
in  colonial  declarations  and  protests,  it  is  to  be  observed  that 
they  are  claimed  or  continued  as  prescriptive  and  hereditary  ; 
as  being  a  consequence  of  national  character,  fixed  by  birth  and 
descent  ;  their  foundation  being  nowhere  based  on  principles 
assumed  a  priori,  as  a  law  of  nature,  but  on  precedent,  custom 
and  legislation.'^  Whatever  may  have  been  the  doctrines  of  the 
early  colonists  as  to  a  foundation  of  legal  rights  and  obKgations 
in  nature  or  revelation  superior  to  that  found  in  the  common 
law,  it  cannot  be  said  that  they  became  sufficiently  defined,  or 
authoritatively  expressed,  to  be  considered  in  any  degree  a  law 
of  the  land.     There  may  probably  be  found  in  various  instances 

'  See  ante,  §  136. 

'  There  were  indeed  two  tchools  among  the  advocates  of  the  liberties  of  the  colo- 
nies ;  see  Chalmers'  Pol.  Ann.,  p.  695.  JeflFerson,  writing  to  Judge  Tyler,  Corrcsp. 
vol  rV.,  p.  178,  (Randolph's  ed. )  said,  "  I  deride,  with  you,  the  ordinary  doctrine  that 
we  brought  with  us,  from  Englnnd,  the  common  law  rights.  *  *  The  truth  is,  we 
brought  with  us  the  rights  of  men,  of  expatriated  men."  In  the  same  letter  he  advo- 
cates the  rejection  of  all  English  decisions  from  the  accession  of  George  III.,  saying 
that  this  would  give  "  the  advantage  of  getting  us  rid  of  all  Lord  Mansfield's  inno- 
vations, or  civilizations,  of  the  common  law."  If  American  law  is  based  on  the  law- 
of-nature  theory — is  Mansfield  or  Jeflferson  the  better  authority  ;  or  will  their  agree- 
ment determine  a  point  ? 


198  REFERENCE   TO    NATURAL    RIGHTS. 

of  colonial  legislation  some  vague  recognition  of  rights  in  indi- 
vidual members  of  society  su])erior  to  legislative  power,  as  in 
the  preamble  to  the  laws  of  Massachusetts  Bay  Colony,  1672  : 
"  Forasmuch  as  the  free  fruition  of  such  liberties,  immunities 
and  privileges  as  humanity,  civility  and  Christianity  call  for, 
as  due  to  .every  man  in  his  place  and  proportion,  without  im- 
peachment and  infringement  hath  been  and  ever  will  be  the 
tranquillity  and  stability  of  churches  and  commonwealths,  and 
the  denial  or  deprival  thereof  the  disturbance,  if  not  ruin  of 
both,  it  is  therefore  ordered  by  this  court,"  &c.  But  though 
such  declarations  recognize  a  rule  binding  on  the  consciences  of 
the  authors  and  executors  of  human  laws,  they  can  have  but 
little  practical  effect  as  a  guarantee  to  the  subject  or  citizen, 
while  the  demands  of  "humanity,  civility  and  Christianity," 
and  the  "  place  and  proportion  "  of  every  man  are  left  undeter- 
mined, or  to  be  ascertained  by  the  actual  holders  of  legislative 
and  executive  power  ;  and  such  declarations  might  be  consist- 
ently subscribed  by  the  possessors  of  the  most  arbitrary  au- 
thority. ' 

§  195.  The  condition  of  those  natural  persons  under  the 
imperial  and  colonial  dominion  in  America  who  had  not,  by  na- 
tional character  or  descent,  a  claim  to  the  personal  extent  of  the 
law  of  England,  must  also  have  been  determined  by  positive 
law,  that  is,  law  derived  either  by  the  judicial  apphcation  of 
natural  reason,  or  from  the  positive  legislation  of  those  depos- 

'  During  the  later  part  of  the  controversy  between  the  colonists  and  the  imperial 
government  in  respect  to  their  political  rights,  there  were  indeed  many  instances  in 
which  the  rights  of  the  individual  colonists  were  asserted  on  principles  of  wider  extent. 
Some  of  these,  which  proceeded  from  public  bodies,  will  be  noticed  hereafter.  Otis, 
in  his  rights  of  the  Colonies,  p.  43,  vol.  I.,  Amer.  Tracts,  London,  176fi.  said  :  "  The 
colonists  are  by  the  law  of  nature  freeborn,  as  indeed  all  men  are,  white  or  black. 
*  *  There  is  nothing  more  evident,  says  Mr.  Locke,  than  that  creatures  of  the 
same  species  and  rank,  promiscuously  born  to  all  the  advantages  of  nature  and  the  use 
of  the  same  faculties,  should  also  be  equal  one  among  another,  without  subordination 
and  subjection,"  &c.  And  p.  51  :  "  Every  British  subject,  born  on  the  continent  of 
America,  or  in  any  other  of  the  British  dominions,  is  by  the  law  of  God  and  nature, 
the  common  law  and  by  Act  of  Parliament,  (exclusive  of  all  charters  from  the  Crown,) 
entitled  to  all  the  natural,  essential,  inherent  and  inseparable  rights  of  our  fellow-sub- 
jects in  Great  Britain."  But  Otis's  doctrine  had  not  been  law  in  the  colonies.  Mr. 
Locke,  in  his  scheme  of  government  for  Carolina,  expressly  sanctions  slavery,  and  in 
one  of  his  dissertations  contemplates  it  as  a  natural  element  in  any  civil  state.  See 
Locke's  Works,  vol.  2,  p.  181.  See  2  Kent's  Comm.  pp.  1,  2,  as  illustrating  a  very 
common  want  of  discrimination  in  speaking  on  this  point. 


ALIEN    SUBJECTS,    HOW    CLASSED.  199 

itaries  of  sovereign'  power  over  the  colonies  which  were  recog- 
nized by  the  public  law  of  the  empire  during  the  colonial  period. 
And  the  determination  of  their  condition  will  be  a  question  of 
municipal  (internal)  or  of  international  law,  according  to  the 
character  of  the  persons  whose  condition  is  to  be  determined.' 

Although  all  the  natural  persons  within  the  territorial  limits 
of  the  colonies,  to  whom,  according  to  the  views  above  set  forth, 
the  English  law  could  not  apply  as  a  personal  law,  were,  by  the 
su})position,  aliens  to  the  territory  of  England,  they  were  to  be 
distinguished  as  either, 

1.  Native  inhabitants  of  the  colonial  territory,  who  therefore 
were  not  aliens  in  respect  to  the  imperial  and  colonial  jurisdic- 
tion, in  the  same  sense  as  persons  entering  the  same  territory 
who  had  been  born  in  a  foreign  country,  that  is,  one  never 
within  the  limits  of  the  British  empire  ;  or, 

2.  Those  who  entered  the  territory  as  alien,  being  alien,  by 
birth,  to  the  colonial  territory  as  well  as  to  the  imperial  juris- 
diction, by  the  axiomatic  principles  of  international  law — the 
necessary  law  of  nations,  hereinbefore  described. '^ 

§  196.  The  American  continent  having  been  occupied  before 
its  colonization  by  savage  tribes  living  without  any  such  estab- 
lished civil  polity  as  is  recognized  by  the  public  international 
law  of  civilized  nations,  the  lands  settled  by  the  English  were 
"desert  and  uncultivated"  in  respect  to  any  "ancient  laws," 
and  therefore,  it  would  seem,  "  chiefly  "  of  the  first  of  those  two 
classes  of  colonies  which  Blackstone  has  described,  where  the 
only  system  of  laws  would  be  that  brought  by  the  colonizing 
people  from  their  original  residence  ;  and  that  this  fact  did 
afford  a  basis  for  a  part  of  the  laws  prevailing  in  the  colonies 
has  already  been  shown  in  the  third  chapter. 

But  though  the  territory  occupied  by  the  native  inhabitants 
was  thus  regarded  as  never  having  been  under  foreign  legislative 
dominion,  they  themselves  were,  of  necessity,  treated  as  having 
a  distinct  nationality  and  political  corporeity,  apart  from  the 
sovereignty  over  the  land.     They  might  be  pubhc  enemies,  and 

'  Ante,  §§  53,  54.  '  Ante,  §  49. 


200  TWO   CLASSES    OF    ALIEN    SUBJECTS. 

as  such  their  rights  and  obligations  might  be  affected  by  the 
laws  of  war,  which  are  classed  as  international  law.  By  prin- 
ciples of  the  law  of  nations  then  received  as  applicable  in  this 
international  law,  they  might  be  made  captives.  And,  inde- 
pendently of  their  individual  liability  to  captivity,  the  conse- 
quences of  an  acquisition  by  conquest,  mentioned  by  Blackstone, 
were  applicable  to  them  as  nations,  or  as  a  class  of  persons  ;  the 
law  as  to  them  was  such  as  the  king  pleased.  That  is  to  say, 
there  being  no  territorial  law  affecting  them,  the  law  was  such 
as  might  be  promulgated  by  positive  legislation  on  the  part  of 
the  crown  or  of  the  local  governments  allowed  or  constituted  by 
the  crown  ;  or  by  the  judicial  application,  by  tribunals  imder 
the  royal  authority  or  that  of  the  local  governments,  of  rules  of 
natural  reason  derived  by  them  according  to  the  judicial  criteria 
before  given. '  This  law,  in  being  applied  to  persons  known  as 
native  or  domiciled  subjects  of  the  imperial  or  colonial  juris- 
diction, would  be  classed  as  municipal  (internal)  law,  according 
to  the  description  of  that  law  given  in  the  first  chapter. 

§  197.  With  regard  to  those  persons  within  the  colonial  ter- 
ritory who  were  neither  natives  of  Great  Britain  nor  of  the 
colonial  territory,  their  condition  must  have  been  determined  by 
international  private  law  ;  at  least  until  they  hail  acquired  the 
character  of  domiciled  subjects.  This  international  law,  accord- 
ing to  the  principles  set  forth  in  the  first  and  second  chapters, 
would  be  known  either  from  positive  legislation,  (proceeding  in 
this  case  from  the  sources  of  private  law  mentioned  in  the  third 
chapter,)  or  by  judicial  application  of  natural  reason,  according 
to  the  allowed  judicial  criteria.  After  becoming  domiciled  in- 
habitants their  future  condition  would  be  determined  by  the 
municipal  (internal)  law  of  the    jurisdiction,   derived  either 


'  In  Shower's  Parliamentary  Cases,  30,  31  ;  in  the  case  of  Button  v.  Howell,  it  was 
said  by  counsel  arguendo, — "  Though  a  matter  may  justify  a  governor  for  an  act  done 
in  his  government  which  would  not  justify  him  for  the  same  act  done  in  England,  yet 
the  governor  must  show  that  he  hath  pursued  the  rules  of  law  in  that  place  ;  or  in  case 
of  no  positive  laws,  the  rules  of  natural  justice ;  for  either  the  common  law,  or  newly 
instituted  laws,  or  natural  equitj',  must  be  the  rule  in  those  places."  So  in  Salk.,  p. 
411,  the  sentence  before  cited,  §  123,  n.  2,  continues, — "  And  that  in  such  cases,  where 
the  laws  are  rejected,  or  are  silent,  the  eonquered  country  shall  be  governed  according 
to  the  rule  of  natural  equity." 


LAW    EXTENDING    TO    ALIENS.  201 

from  imperial  or  provincial  legislation,  or  by  judicial  application 
of  rules  of  natural  reason,  according  to  the  criteria  above  re- 
ferred to  ;  having  a  like  territorial  extent  and  authority  with 
that  law  which  determined  the  condition  of  those  native 
inhabitants  to  whom  the  English  law  did  not  originally  apply- 
as  a  personal  law,  i,  e.,  the  so-called  aboriginal  inhabitants. 

§  198.  In  order  therefore  to  determine  the  relations,  rights 
and  duties  constituting  the  legal  condition  of  these  two  classes 
of  persons  in  the  colonies,  it  is  necessary  to  ascertain  what  rules 
were  at  that  period  to  be  judicially  received  as  rules  of  natural 
reason  applying  to  natural  persons  independently  of  the  law  of 
England  ;  which  law,  so  far  as  it  appKed  to  all  persons  within 
any  particular  territory,  had  such  extent  in  England  only,  and 
as  a  personal  law  in  the  colonies  applied  only  to  the  colonists  of 
English  birth  or  race. 

Since  the  period  of  time  referred  to,  and  in  which  the  rule 
of  natural  reason  was  to  be  ascertained,  was  that  of  the  first 
existence  of  law  as  to  such  persons  within  the  colonial  jurisdic- 
tion, (there  being  as  yet  no  positive  legislation,  and  no  national 
judicial  precedents  in  respect  to  persons  known  as  the  inhab- 
itants of  that  jurisdiction,)  reference  must  be  had  to  such  indi- 
cations of  natural  reason  as  are  judicially  receivable,  because 
indicative  of  the  presumed  will  of  the  state  in  cases  wherein  its 
existing  legislation  and  local  precedents  do  not  apply.  Or,  to 
express  the  same  idea  in  a  somewhat  different  form,  since  at 
the  first  establishment  of  civil  government  in  the  colonies  there 
were  no  national  judicial  precedents  for  the  colonial  tribunals, 
except  such  as  were  comprehended  in  the  territorial  law  of 
England,  (which  law,  in  the  colonies,  applied  only  to  the 
Enghsh  and  their  descendants,  and  as  a  personal  law,)  the  only 
principles  of  the  English  law  which  could  be  judicially  ajjplied 
to  any  other  persons  within  the  colonial  territory,  were  such  as 
could  be  taken  to  be  universal  principles  ;  that  is,  principles 
which,  while  recognized  by  the  state  in  its  juridical  action, 
were  not  promulgated  either  as  law  for  England  only,  or  for 
certain  persons  as  its  inhabitants,  (jus  jiroprium,)  but  principles 
received  by  the  state  without  reference  to  their  application  to 


202  FORCE   OF    UNIVERSAL    JURISPRUDENCE. 

any  particular  territory  ;  or  such  as  the  tribunal  might  suppose 
the  state  would  apply  independently  of  all  territorial  distinc- 
tions. This,  according  to  what  has  been  said  in  the  second 
chapter,  would  involve  the  judicial  recognition  of  a  universal 
jurisprudence — the  science  of  natural  law  in  the  only  sense  in 
which  it  can  be  acknowledged  in  jurisprudence  properly  defined 
— the  science  of  the  historical  law  of  nations^  manifested 
through  the  application  of  private  international  law,  and  judi- 
cially received  by  tribunals  of  various  national  character  as 
being  founded  in  natural  reason,  because  known  in  the  history 
of  jurisprudence  to  have  had  general  extent  and  application 
in  muuicii^al  and  international  law.^  In  order  then  to  de- 
termine what  principles  had  this  character,  or  could  be  judicially 
taken  to  have  this  character,  at  the  time  of  the  planting  of  the 
colonies,  it  is  necessary  to  examine  the  history  of  jurisprudence 
among  all  nations,  or,  at  least,  among  the  civilized  nations  of 
Europe  down  to  that  period  ;  tracing  the  general  recognition  of 
any  legal  principles  which  applied  to  the  relations,  rights,  and 
duties  of  private  persons  with  such  efiect  as  to  become  elements 
in  a  condition  of  freedom  or  its  opposites. 

§  199.  The  mode  in  which  such  principles  must  have  been 
ascertained,  and  their  effect  upon  relations  of  private  persons, 
have  already  been  set  forth  in  the  preceding  chapter,  when 
considering  the  question  whether  such  principles  could  take 
effect  in  England  as  part  of  the  common  law.  It  was  there 
shown  that  at  the  time  of  the  first  planting  of  the  colonies  the 
prevailing  legal  doctrine  woidd  seem  to  have  sustained  the 
chattel-slavery  of  Moors,  African  negroes,  and  Indians,  at  least 
while  heathen  or  infidel,  even  in  England.  But  even  if  it  must 
be  held  that  the  English  law  of  the  privileges  and  immunities 
of  Englishmen  applied  to  every  person  on  English  soil,  and  so 
rendered  the  maintenance  of  slavery  legally  impossible  there, 
yet  there  was  not,  at  that  time,  at  least,  any  such  universal 
personal  and  territorial  extent  to  be  judicially  attributed  to 
that  law,  that  it  should  be  held  to  obtain  wherever  the  do- 

'  Compare  ante,  §§  19,  34,  96-101. 


RIGHTS   OF    THE    ABORIGINES.  203 

minion  of  the  British  empire  extended.'  Personal  liberty  or 
freedom  of  condition  was  not,  by  English  law,  so  attributed  to 
every  natural  person  that  slavery  was  incompatible  with  the 
English  sway  in  other  regions,  or  was  abolished  by  it,  as  one  of 
those  laws,  or  as  the  effect  of  one  of  those  laws,  which  are  con- 
trary (in  English  jurisprudence)  to  the  laws  of  Grod,  according 
to  the  principle  which  has  been  noticed  in  a  preceding  section.'^ 
Upon  the  occupation  of  the  western  continent  by  the  Euro- 
pean nations,  the  international  rules  of  warfare  received  by 
those  nations,  with  the  ancient  law  of  slavery  resulting  from 
captivity,  in  wars  with  savage  tribes,  were,  as  has  been  already 
said,  generally  applied  to  the  native  races.  And,  long  after  the 
foundation  of  the  English  settlements,  their  unwillingness  or 
incapacity  to  unite  with  the  colonists  in  social  and  civil  life, 
rendered  it  impossible  to  extend  to  them  the  obligations  and 
privileges  of  the  same  system  of  laws.  The  intercourse  of  the 
colonists  with  the  aborigines  was  regulated  only  by  such  rules 
as  the  local  governments  and  the  representatives  of  the  crown 
supposed  to  be  in  accordance  with  natural  reason,  applied  to 
the  international  intercourse  of  civilized  communities  with  bar- 
barians, or  to  be  supported  by  the  usage  of  other  Christian 
nations.  The  views  entertained  by  Europeans,  during  the  earlier 
period  of  colonization,  of  their  obligations  in  this  respect  al- 
lowed, in  most  cases,  a  practical  denial  of  all  legal  rights  in  the 
heathen  and  savage,  as  opposed  to  the  interests  of  the  Christian 


'  Whether  the  English  law,  meaning  the  territorial  law  of  the  British  islands,  at- 
tributes, or  did  at  any  time  during  the  colonial  period,  attribute  the  rights  sometimes 
known  as  the  personal  rights  of"  Englishmen  to  all  natural  persons  within  that  geo- 
graphical domain,  i.  e.,  the  British  islands,  irrespectively  of  race  or  birth,  is  a  question 
file  elements  of  which  liave  already  been  considered  in  the  previous  chapter,  as  a  topic 
of  the  municipal  (internal)  law  of  England.  But  it  still  remains  to  be  viewed  as  a 
question  of  the  private  international  law  of  that  dominion ;  that  is,  a  question  of  the 
law  which,  in  England,  determined  the  condition  of  persons  regarded  as  aliens  to  the 
territory  of  England.     See  post,  ch.  vii. 

*  See  antf,  p.  11.5,  n.  2.  That  slavery,  in  India,  was  maintained  by  the  British 
judicature  because  sanctioned  by  Hindoo  and  Mahommedan  law, — see  Harrington  s 
Analysis:  Calcutta,  1817,  vol.  i.  pp.  78,  279,  and  vol.  iii.  p.  74.3,  note,  citing  an  otHcial 
paper  by  Mr.  H.  Colebrooke,  in  1812.  Also,  a  work  written  with  view  of  publication 
in  America,  William  Adams'  Law  and  Custom  of  Slavery  in  British  India :  London, 
1840.  That  in  the  British  possessions  on  the  coast  of  Africa,  slavery  among  the 
natives  is  recognized  by  the  authorities  as  matter  of  necessity, — Cruikshauk's  Eighteen 
Years  on  the  Gold  Coast,  vol.  ii.  ch.  5). 


204  HISTORY    OF    THE    ABORIGINES. 

or  European  colonist.'     The  right  of  the  native  inhabitants  in 
the  lands  they  occupied  was  considered,  at  best,  only  qualified 
and  temporary,  and  their  lives  and  property  received,  even  in 
periods  of  professed  peace,  but  little  protection  from  the  colonial 
laws  ;  it  being  in  fact  impossible,  in  reference  to  savage  races, 
to  make  those  discriminations  between  a  state  of  peace  and  a 
state  of  war,  which  are  so  important  in  determining  the  legal 
character  of  acts  incident  to  the  intercourse  of  civilized  nations.' 
The  generally  received  doctrines  of  the  difference  in  riglits  be- 
tween Europeans  and   Moors,  Africans  and  Indians,  together 
with  the  international  application  of  those  doctrines  has  been 
stated  in  the  preceding  chapter.     The  warlike  and  intractable 
character  of  the  North  American  Indian  would  have  prevented, 
had  there  been  no  moral  restraint,  the  systematic  oppression 
and  enslavement  which  was  practised  in  the  islands  and  the 
southern  parts  of  the  continent  by  the  Spaniards.     In  the  Eng- 
lish colonies  the  aboriginal  inhabitants  receded  before  the  ad- 
vancing settlements,  and  never  became,  unless  in  a  few  isolated 
cases,  incorporated  wdth  the  body  of  the  white  inhabitants,  and 
they  have  continued,  as  a  race,  to  form  separate  communities, 
whose  relations  to  the  whites  have  been  determined  under  spe- 
cial quasi-mternsitiona].  laws,^     In  the  earlier  history  of  all  the 
colonies  there  are  instances  of  their  being  reduced  to  slavery  by 


'  1  Stoiy'8  Comm.  §§  1-10.     1  Banc.  145,  167,  270.     1  Hildr.  69,  410.     But  the 

instructions  from  the  authorities  in  England,  repeatedly  enjoined  justice  towards  the 
natives,  1  Banc.  346,  and  Charter  of  Mass.  Prov.,  in  1692.  Many  of  the  earlier  colo- 
nial laws  propose  an  adoption  of  Indians  into  the  civil  community.  See  Virginia 
Laws,  1619,  N.  Y.  Hist.  Soc.  Coll.  2d  series,  vol.  iii.  part  1,  p.  331.  Mass.  Laws, 
1633,  post  ch.  vi. 

"  Francis  Victoria,  A.  D.  1557,  opposed  the  current  opinions  of  his  day  in  asserting 
that  hostilities  against  the  native  tribes  could  not  be  justified  on  the  ground  of  their 
vices,  or  of  their  Paganism.  "  Indis  non  debere  auferri  impcrium  ideo  quia  sunt  pec- 
catores,  vel  ideo  quia  non  sunt  Christiani."  See  Mackintosh,  Hist.  Eth.  Phil.  p.  109. 
The  same  opinion  was  held  by  Ayala,  1597,  and  by  Covarruvias  and  others.  See 
Hallam's  Lit.  of  Europe.  Victoria  held,  however,  that  it  was  lawful  to  enslave  Pagan 
captives.  See  Wheaton's  Law  of  Nations,  Introd.  p.  40.  During  the  sixteenth  cen- 
tury, in  wars  of  European  states  the  captor  had  a  property  in  his  prisoner,  which  was 
assignable,  1  Motley's  Rise  of  D.  R.  p.  151.  B\-nkershoek,  Quajst.  Jur.  Pub.  lib.  i. 
c.  3,  that  a  German  officer  commanding  in  L^land,  in  1690,  is  said  to  have  ordered 
prisoners  to  be  transported  to  America,  to  be  sold  as  slaves,  and  to  have  been  only 
deterred  by  the  threat  of  the  Duke  of  Berwick,  that,  as  a  retaliatory  measure,  he 
would  send  his  prisoners  to  the  gallevs  in  France. 

'  Dred  Scott  v.  Sanford,  19  How'ard  R.  403,  404.     Kenf  s  Comm.  Lect.  LL 


AFRICANS    IN    AMERICA.  205 

the  local  authorities  ;  usually,  when  taken  captive  in  war,  or 
in  punishment  for  violations  of  the  code  of  intercourse  prescribed 
by  the  colonial  powers.'  There  were  also  instances  of  their 
being  kidnapped  and  sold  ;  but  this  was  contrary  to  express 
statute,  in  most,  if  not  in  all  the  colonies,  and  to  the  law  of 
nations  as  generally  recognized  in  the  international  intercourse 
of  Europeans  with  heathen  and  barbarian  nations.' 

§  200.  It  was  the  colonization  of  America  that  gave  occa- 
sion to  a  wider  and  more  important  application  of  that  modifi- 
cation of  the  ancient  doctrine  of  chattel  slavery  into  a  personal 
law  for  Moors  and  negroes  which  was  described  in  the  previous 
chapter.  Negro  slaves  were  introduced  into  the  Spanish  colo- 
nies as  early  as  the  year  1501,  and  the  importation  received  the 
sanction  of  a  royal  ordinance  about  the  same  period.  Charles 
V.  granted  letters  patent  to  transport  slaves  into  the  Spanish 
colonies  in  1543.  The  French,  English  and  Dutch  navigators 
joined  in  the  trade  of  importation,  and  it  became  an  ordinary 
branch  of  commercial  enterprise,  in  which  merchants  of  every 
maritime  nation  in  Europe  took  part.  Sir  John  Hawkins 
brought  slaves  into  the  Spanish  West  India  Islands  in  1562.^ 

Slaves  were  brought  into  the  North  American  colonies 
shortly  after  their  first  settlement.  Negro  slavery  in  Virginia 
is  said  to  have  commenced  with  the  importation  of  a  cargo  of 
slaves  from  Africa,  by  a  Dutch  vessel  in  1620.^  Hutchinson 
says  that  negroes  were  brought  in  very  early  among  the  colo- 
nists of  Massachusetts,  but  that  they  had  a  law  against  slavery, 
except  of  prisoners  taken  in  war.  The  Massachusetts  Funda- 
mentals 1641,  sanction  slavery  by  purchase.^     Also  the  law  of 

»  2  Winthrop's  N.  E.  360.  1  Banc.  168.  1  Hild.  pp.  37,  239,  251,  269,  489, 
490,  538,  557  ;  2  do.  271.     Hewit's  Hist,  of  S.  Car.  vol.  i.  p.  78,  and  post,  ch.  vi. 

^  See  ante,  §  166.  During  the  first  century  after  the  discovery  of  America,  na- 
tives of  the  continent  were  frequently  seized  and  sold  as  slaves  in  Europe  and  the  W. 
I.  islands.     See  1  Banc.  167-169,  and  the  citations. 

'  For  the  earlier  history  of  slavery,  in  connection  with  that  of  the  American  conti- 
nent, see  1  Banc.  159-179,  and  the  authors  cited  in  the  preceding  chapter.  Charters 
incorporating  adventurers  with  a  monopoly  of  the  importation  of  slaves  from  Africa 
into  America  were  granted  by  James  I.,  Charles  I.,  and  Charles  II.,  "  and  in  the  year 
1792,  twenty-six  acts  of  parliament,  encouraging  and  sanctioning  the  trade,  could  be 
enumerated."     Walsh's  Appeal,  326,  327. 

*  Beverley's  Virginia,  35.  1  Banc.  177. 

*  1  Hutch.  Hist.,  3d  ed.  p.  393.     See  post,  ch.  vL     In   JosseljTi's  Voyage,  1638, 


206  CHATTEL-SLAVERY    LAWFUL. 

the  other  New-England  colonies  at  that  period  was  undoubtedly 
the  same  on  this  subject.  The  Dutch  records  allude  to  the 
existence  of  slavery  in  tlie  settlements  on  the  Hudson  in  1626, 
or  even  at  the  first  settlement  of  the  colony  of  New  Amster- 
dam, and  in  those  on  the  Delaware  in  1639/  From  the  legis- 
lation of  the  Carolinas,  it  seems  that  negroes  were  held  in  them 
as  slaves  from  the  earliest  period  of  their  settlement.''  But  it 
is  probable  that,  in  all  the  colonies,  Indians  taken  in  war,  were 
held  as  slaves  before  any  negroes  were  imported  from  Africa. 
Slave-holding  was  not  permitted  in  Georgia  before  the  year  1747.' 
§  201.  Whatever  sanction  may  have  been  given  to  slavery 
in  any  of  its  legal  aspects,  by  subsequent  statutes  of 
the  British  Parliament,  royal  ordinances,  or  colonial  legis- 
lation, such  acts  of  strictly  positive  legislation  could  have 
had  no  effect  upon  the  condition  of  persons  in  the  colonies  at 
the  time  of  the  first  introduction  of  African  and  Indian  slaves. 
It  is,  however,  a  clear  deduction  from  the  elementary  legal 
principles  which  have  been  hereinbefore  set  forth,  that  the 
chattel-slavery  of  heathen  Africans  and  Indians  was  lawful  at 
this  time  in  all  the  colonies,  and  properly  received  judicial  re- 
cognition and  support  in  international  and  municipal  (internal) 
private  law.  This  lawfulness  is  not  here  stated  as  the  result  of 
a  custom,  the  inception  of  wliich  is  here  described,  or  as  being 
proved  by  subsequent  long-continued  acquiescence,  but  as  being, 
at  the  time  of  such  inception,  the  effect  of  established  princi- 
ples, judicially  recognized  in  all  countries,  having  the  authority 
of  that  jurisprudence  which  among  all  nations  is  taken  to  be 
the  foundation  of  the  far  greater  portion  of  legal  rights  and 
obligations.  It  was  judicially  regarded  as  resting  on  natural 
reason  indicated  in  the  law  of  nations  historically  known  at  that 

negroes  are  mentioned  as  being  held  in  slavery  at  Noddle's  Island  in  Boston  harbor. 
See  Mass.  Hist.  Coll.,  vol.  3,  p.  231. 

'  Moulton's  Hist.  N.  Y.,  vol.  1,  part  2,  p.  373.  1  Hildr.  441.  2  Banc.  303.  The 
Dutch  W.  I.  Company  agreed  to  furnish  the  colony  of  New  Netherlands  with  as  many 
blacks  as  they  conveniently  could.  1  Broadhead,  p.  196.  Bettle's  essay  in  Mem. 
Penn.  Hist.  Soc.,  vol.  1.  Hazard's  Annals  of  Pennsylvania.  Albany  Records.  No 
mention  is  made  of  negroes  in  Campanius's  account  of  the  Danish  colony  of  New  Sweden. 

'  A  cargo  of  negroes  from  Barbadoes  brought  by  Sir  John  Yeomans,  in  1671.  2 
Banc.  1 70. 

'  Stevens'  Hist,  of  Georgia,  p.  312. 


CONSTRUCTION    OF    THE    CHARTERS.  207 

period— the  common  law  of  the  world' — applied  in  international 
and  in  municipal*  law  because  indicating  the  will  of  the  su- 
preme source  of  law  having  the  territorial  jurisdiction,  wlienever 
not  disallowed  by  some  more  direct  exposition  of  that  will.^ 

§  202.  On  the  same  principle  by  which  the  historical  law  of 
nations  was  received  in  supporting  the  slavery  of  foreign  Afri- 
cans, that  is,  that  of  being  an  indication  of  natural  reason  sup- 
posed to  be  accepted  by  the  supreme  power  of  the  state,  the 
same  doctrines  of  the  law  of  nations,  or  universal  jurisprudence, 
must  be  held  to  have  obtained  with  legal  effect  in  interpreting 
the  legislative  enactments  of  the  supreme  power  and  the  per- 
sonal extent  of  the  charter  provisions  operating  as  private  law. 

• 

*  The  existence  of  a  jus  gentium,  or  historical  law  of  nations,  operating  as  private 
law,  must  be  admitted  in  construing  statements  like  this  of  Taney,  C'h.  J.,  in  Dred 
Scott's  case,  19  Howard,  R.  407:  "  They  [negroes]  had  for  more  than  a  century  be- 
fore, [the  time  of  the  Declaration  of  Independence  and  of  the  adoption  of  the  Constitu- 
tion of  the  U.  S.,]  been  regarded  as  beings  of  an  interior  order,  and  altogether  unfit  to 
associate  with  the  white  race,  either  in  social  or  political  relations ;  and  so  far  inferior, 
that  they  had  no  rights  which  the  white  man  was  bound  to  respect ;  and  that  the  ne- 
gro might  justly  and  lawfully  be   reduced  to  slavery  for  his  benefit.     He  was  bought 

f^d  sold,  and  treated  as  an  ordinary  article  of  merchandise  and  traffic,  whenever  a 
profit  could  be  made  by  it.  This  opinion  was  at  that  time  fixed  and  universal  in  the 
civilized  portion  of  the  white  race.  It  was  regarded  as  an  axiom  in  morals  as  well  as 
in  politics,  &c."  It  is  not  necessary  to  suppose  the  learned  Chief  Justice  to  intend 
•aying  that  a  negro  who  had  never  been  a  slave,  or  who  had  been  legally  manumitted, 
had  no  rights,  &c.,  so  that  it  was  every^vhere  lawful  for  any  white  man  to  seize  such 
a  one  and  treat  him  as  an  article  of  property.  The  lavj  of  nations,  as  set  forth  in  the 
preceding  chapters,  never  embraced  such  a  doctrine.  If  his  meaning  is  that  a  sover- 
eign state,  having  jvuisdiction  over  the  person  ef  a  negro,  was  not  bomid  to  respect  in 
him  any  rights — the  same  may  as  truly  be  said  of  any  white  man :  any  ethiciil  dis- 
tinction that  may  exist  cannot  affect  the  matter. 

*  With  the  use  of  the  term  law  of  nations  in  the  text,  contrast  that  given  to  it  in 
Neal  f.  Farmer,  9  Geo.,  R.  570,  571 ;  where  the  com-t  m  asserting  the  Icgahty  of 
slavery  independently  of  statute  or  the  common  law  of  England,  ascribes  it  to  "  the 
law  of  nations  "  in  the  sense  of  public  international  law — a  law  of  which  nations  are 
the  subjects.  On  the  other  hand  see  Mr.  Seward's  use  of  the  law  of  nainre  and  of 
tuitions,  ante,  p.  193,  n.  Such  contradictions  in  the  premises  used  by  eminent  jurists 
are  here  appealed  to  as  vindicating  the  necessity  of  that  discrimination  of  terms 
which  was  attempted  ia  the  first  chapter. 

°  Granville  Sharpe,  in  his  Tract  on  the  Law  of  Nature,  London,  1777,  p.  3,  takes 
the  jus  gentium  in  respect  to  slavery  as  bemg  contrary  to  the  law  of  natural  right 
recognized  by  the  Roman  law,  quoting  Inst.  I.  Tit.  III.  §  2.  Servitus  est  autem  con- 
stitutio  juris  gentium  qua  quis  dominio  aUeno  contra  naturam  subjicitur.  Bractoa 
ha\-ing  repeated  the  same,  Lib.  I.,  cap.  6,  and  Fleta,  Lib.  I.,  cap.  3,  they  are,  with 
Cowell's  Institutes,  quoted  by  Sharpe  as  proving  that  slavery  is  contrary  to  the  rule  of 
natural  reason  received  in  the  common  law.  The  method  followed  by  this  ivTiter  to 
prove  a  doctrine  of  the  common  law  of  England,  is  the  same  as  that  which  is  indicated 
in  this  chapter  and  the  preceding.  But  the  law  of  natural  reason  on  this  point,  dedu- 
cible  from  the  Institute,  is  precisely  the  reverse  of  that  for  which  he  refers  to  it,  as 
has  been  shown  in  the  preceding  chapter. 


208  SLAVEBT   UNDER   STATUTE   LAW. 

The  doctrine  supporting  chattel-slavery  must  be  held  to  have 
limited  the  extent  of  the  term  "  colonists,"  where  used  in  the 
charters  to  describe  the  subjects  of  privilege  and  guarantee,  to 
legal  persons  as  distinguished  from  slaves  ;  even  if  it  did  not 
go  farther  and  confine  the  term  to  whites,  or  persons  of  the 
European  race,  to  the  exclusion  of  Africans  and  Indians, 
whether  bond  or  free.* 

§  203.  It  lias  been  shown,  in  the  third  chapter,  that,  where 
the  guarantee  of  common  law  rights  did  not  apply  to  determine 
the  relations  and  rights  of  private  persons,  the  power  of  sover- 
eignty to  afiect  such  relations  and  rights  must  have  been  divid- 
ed between  the  local  government  of  each  colony  and  the  im- 
perial government  ;  that  the  limits  of  each  were,  unavoidably, 
always  undetermined ;  but  that,  admitting  the  rights  and  ob- 
ligations of  the  colonists  in  internal  relations  (relations  between 
persons  regarded  as  domiciled  inhabitants)  to  have  been  essen- 
tially within  the  powers  of  the  local  governments,  yet  such  as 
were  incident  to  relations  of  commerce  and  international  inter- 
course must  have  been,  to  the  greater  extent,  within  the  genera^ 
control  of  the  parliament  and  crown  of  England.'  There  does 
not  appear  to  have  been  any  act  of  positive  legislation,  })roceed- 
ing  from  the  imperial  authority,  which  determined  the  condition 
of  Africans  or  Indians  within  the  colonies,  considered  either  as 
alien  or  domiciled  persons.  There  are  statutes,  however,  which, 
being  interpreted  by  the  "  usage  and  custom  of  merchants"  as 
prevailing  at  that  time,  have  always  been  held  to  support  sla- 


*  Compare  the  language  of  the  Supreme  Court  of  Pennsylvania  in  Hobbs  v.  Fogg, 
6  Watts'  R.  558-560,  when  limiting  the  personal  extent  of  the  term  freeman. 

'  See  ante,  §  131.  To  this  power  may  be  referred  the  frequent  rejection  of  colonial 
laws  restricting  the  introduction  of  African  slaves.  Davis  v.  Curry,  1810.  2  Bibb's 
Rep.(KT.,)  238 — By  the  Court :  "  Slavery,  it  is  believed,  was  introduced  into  the  colonies 
by  the  regulation  of  the  mother  country,  of  which  the  courts  in  all  the  colonies  were 
equally  bound  to  take  notice,  in  the  same  manner  as  the  courts  of  the  several  states 
are  now  bound  to  take  notice  of  any  regulation  of  the  general  government ;  and  what 
the  courts  of  the  colonies  were  bound  to  take  notice,  judicially,  we  must  still  be  pre- 
sumed to  know,  if  not  as  matter  of  law,  at  least  as  matter  of  history."  Though  the 
condition  of  slavery  in  the  colonies  may  not  have  been  created  by  the  imperial  legis- 
lature, yet  it  may  be  said  with  truth,  that  the  colonies  were  compelled  to  receive  Af- 
rican slaves  by  the  home  government.  See  Brougham's  Col.  Pol.,  B.  II.,  §  1.  3 
Banc.  411,  Stevens'  Georgia  285.  2  Tucker's  Bl.  app.  II.  Madison  Papers,  III.,  1390. 
Walsh's  Appeal,  310-319.    Lord  Stowell  in  2  Hagg.  Ad.  R.  109. 


COLONIAL    LAW    FOR    SLAVERY.  209 

very  in  the  colonies,  if  not  in  England  ;  their  effect  being  how- 
ever mainly  to  recognize  property  in  negroes  when  on  the  high 
seas  in  British  vessels,  and  before  they  could,  as  natural  persons, 
be  considered  the  domiciled  inhabitants  of  any  of  the  British 
dominions.  The  just  effect  of  these  statutes  in  this  respect  is 
derived  from  the  view  herein  before  given  of  the  law  of  nations^ 
and  its  effect  in  international  and  municipal  (internal)  law.' 

§  204.  If  undetermined  by  imperial  statutes  or  by  the  char- 
ter provision,  the  condition  or  status  of  the  African  or  Indian, 
when  regarded  either  as  a  natural  person  within  the  territorial 
limits  of  a  colony  or  as  the  property  of  a  legal  person  domiciled 
within  those  limits,  would  depend  upon  the  powers  vested  in 
the  local  or  colonial  government,  as  being  one  of  the  subjects 
of  its  proper  jurisdiction.  The  law  derived  from  the  exercise  of 
this  power  would  be  known  either  from  positive  legislation  or 
from  a  judicial  application  of  natural  reason,  in  the  manner  in- 
dicated in  the  first  chapter.  Principles  thus  judicially  applied 
would  form  a  part  of  the  common  law  prevailing  in  and  for  the 
colony.  It  was  an  admitted  principle  of  the  colonial  system,  or 
of  the  public  law  of  the  Empire,  that  the  colonial  courts,  in 
determining  the  rules  having  this  character,  were  independent 
of  the  courts  of  common  law  in  England.  Their  decisions  were 
reviewable,  if  at  all,  only  by  the  king  in  council.*^      Common 


'  See  ante,  §  176.  Biirge's  Comm.  vol.  1,  p.  737,  n.  ;  "  The  following  are  among 
the  numerous  acts  by  which  the  British  legislature  encouraged  the  African  slave  trado 
and  sanctioned  slavery-  in  her  colonies  : — Royal  charters  of  Cha.  2,  in  1664  and  1672, 
9  and  10  Wm.  3,  c.  26.  The  6  Anne,  c.  37,  §  18,  subjects  captains  of  his  majesty's 
ships  of  war,  arriving  at  any  of  the  harbors  of  the  colonies,  "  to  the  good  and  necessary 
laws  in  force  there  for  the  preventing  the  carrying  off  from  the  said  colonies  any  ser- 
vant or  slave,  without  the  consent  of  the  owner,  and  to  the  penalties  and  forfeitures 
declared  by' such  laws."  10  Anne,  c.  27.  The  Queen's  speech  to  Parliament  in 
June,  1712.  23  Geo.  2,  c.  31.  25  Geo.  2,  c.  40.  4  Geo.  3,  c.  20.  5  Geo.  3,  c.  44. 
23  Geo.  3,  c  65.  27  Geo.  3,  c.  27.  The  proceedings  of  the  House  of  Commons  from 
1707  to  1713.  Acts  encouraging  loans  to  the  proprietors  in  the  West  Indies  from  British 
subjects  and  foreigners.  5  Geo.  2,  c.  7.  13  Geo.  3,  c.  14.  14  Geo.  3,  c.  79.  1  and 
2  Geo  4,  c.  51.  3  Geo.  4,  c.  47.  5  Geo.  4,  c.  113,  §  37.  59  Geo.  3,  c.  120,  for  the 
registration  of  slaves.  The  act  of  the  legislature  of  Pennsylvania,  7  June,  1712,  to 
prevent  importation  of  negroes  and  Indians  into  that  province,  was  disallowed  by 
Great  Britain  and  accordingly  repealed  by  act  of  Queen  Anne,  20th  F'eb.  1713. — 
1760,  South  Carolina  passed  an  act  to  prevent  the  further  importation  of  slaves,  but 
Great  Britain  disallowed  the  act  and  sent  a  circular  to  all  the  other  governors,  pro- 
hibiting them  from  assenting  to  any  similar  act." 

'  Story's  Comm.  §§  163,  175,  176,  and  citations. 

14 


210  BAPTISED    OR    CONVERTED    SLAVES. 

law  had  therefore  in  each  colony  a  several  growth  or  progressive 
formation,  as  it  had  in  England,  and  if  the  personal  guarantee 
of  rights,  according  to  the  law  of  England,  did  not  apply  to  the 
negro  or  Indian  inhabitant,  there  was  no  necessity  that  the  rules 
judicially  derived  to  determine  their  condition,  as  domiciled 
subjects  under  their  several  judicatures,  should  be  the  same  in 
England  and  in  the  colonies.  It  does  not  appear  from  any  his- 
torical record  that  the  question — whether  a  heathen  negro  or 
Indian  slave  became  free  on  being  converted  to  Christianity,  or 
on  receiving  baptism — was  ever  discussed  before  the  colonial 
courts.'  It  is  certain  that  slaves  so  converted  or  baptised  and 
their  issue,  born  in  the  colonies,  and  therefore,  it  would  seem, 
nominally  Christian,  were  usually  retained  in  slavery  and  bought 
and  sold,  either  as  bondmen  or  as  chattels,  and  that  the  right 
of  ownership  in  such  slaves  must  constantly  have  received  ju- 
dicial recognition  before  the  existence  of  any  colonial  statutes 
determining  their  condition.  It  seems  impossible  now  to  ascer- 
tain whether  the  courts  regarded  the  slave,  after  conversion,  as 
still  a  chattel,  or  as  a  legal  person  held  to  bondage  for  life.  The 
different  colonial  judicatures  may,  very  probably,  have  had  dif- 
ferent views  on  this  point.  In  determining  the  application  of 
natural  reason  to  the  circumstances  of  converted  or  baptised 
slaves  and  their  issue,  they  undoubtedly  referred  to  the  usage 
and  practice  of  other  nations,  in  reference  to  the  same  class  of 
persons.  Undeivthis  reference,  if  they  regarded  slaves  as  legal 
persons,  capable  of  contracting  legal  marriages,  they  may  have 
held  that  the  condition  of  the  issue  foUowed  that  of  the  parents, 


'  Tliere  are  laowever  many  colonial  statutes  which  show  that  the  question  had 
been  mooted.  See  post  ch.  \\.  Mr.  Bancroft,  Hist.  U.  S.,  iii.  409,  says — "  From  New 
Ent^land  to  Carolina,  the  '  notion '  prevailed,  that  '  being  baptized  is  inconsistent  with 
a  state  of  slavery  ;'  and  this  early  apprehension  proved  a  main  obstacle  to  the  culture 
and  conversion  of  these  poor  people."     Citing  Berkeley's  Works,  iii.  247. 

The  statute  of  Mrginia,  1682,  c.  i.,  see  post  ch.  vi.,  seems  to  recognize  the  exist- 
ence of  a  principle  of  universal  prevalence  that  a  negro.  Moor  or  mulatto  slave,  hav- 
ing been  converted  to  Christianity,  is  no  longer  a  chattel,  and  can  only  be  considered 
as  a  servant  bound  for  years,  on  an  equality  of  status  with  European  imported  ser- 
vants ;  and  that  such  person  can  be  a  slave  only  by  force  of  some  statute  or  local  cus- 
tom— -jus  proprinm.  It  declares  that  "  by  the  laws  of  this  country"  the  conversion 
"  doth  not  manvimit  them  or  set  them  free,"  but  that,  if  introduced  after  conversion, 
the  master  or  owner  would  be  obliged  "  to  depart  from  their  just  right  and  title  to 
such  slave  and  sell  him  for  no  longer  time  than  the  English,"  &c.,  &c. 


INHERITANCE  OF  SLAVERY.  211 

wliere  both  were  slaves  ;  and  that,  in  the  case  of  mixed  mar- 
riages and  of  births  out  of  wedlock,  the  civil  law  rule — partas 
ventrem  sequatur — obtained,  irrespectively  of  the  rules  of  con- 
dition by  descent  derived  from  the  customary  law  of  England. 
It  is  however  probable  that  the  chattel  character  was  generally 
ascribed  to  the  captived  slave,  and  that  the  rule  of  descent  de- 
rived from  the  civil  law  was  judicially  received,  in  all  cases,  to 
determine  both  the  condition  of  the  issue  and  the  right  of 
ownership  in  the  offspring  of  slaves  of  different  masters.'  The 
law  arising  from  the  judicial  determination  of  these  points, 
having  never  been  questioned  under  the  royal  right  of  super- 
vision, created  a  common  law  in  and  for  the  colony,  and  was, 
independently  of  statutes,  a  sanction  for  slavery,  even  though 
t|iis  judicial  application  of  common  law  may  have  differed  wide- 
ly from  the  doctrine  sustained  by  the  English  courts  of  law  : 
though,  as  has  been  shown  in  the  previous  chapter,  it  is  very 
questionable  whether  the  doctrine  contemporaneously  received 
in  England,  during  the  period  which  elapsed  between  the  intro- 
duction of  heathen  slaves  and  the  existence  of  local  customary 

^  The  rule  of  the  Roman  law — determining  the  condition  of  the  issue  by  that 
of  the  mother — applied  only  when  there  was  no  legal  marriage.  Dig.  L.  I.  t.  5,  §  24 ; 
Lex  naturae  hsec  est  ut  qui  nascitui'  sine  legitime  matrimonio  matrenj  sequatur,  nisi  lex 
specialis  aliud  inducit.  Blackstone  II.  9-t,  says — "  But  no  bastard  can  be  bora  a  villein," 
citing  Co.  Litt.  §  188;  but  this  is  probably  incorrect,  see  the  note  on  Coke  by  Har- 
grave  and  Butler,  and  iu  Mirrour  c.  2,  s.  28  ; — "  Those  are  villeins  who  are  boni  of  a 
freeman  and  a  ueif,  and  born  out  of  mah-imony."  The  rule  applied  where  either  pa- 
rent was  a  chattel  slave,  because,  not  being  legal  persons,  the  legal  relation  of  mar- 
riage could  not  exist,  and  also  because  the  issue  of  a  female  slave  was  regarded  as  the 
natural  increase  of  a  chattel:  see  Hcinec.  Jur.  Nat.  et  Gent.,  L.  ii.  §  81.  If  the  Ro- 
man law  contained  any  rule  determining  the  condition  of  those  born  in  wedlock,  it 
was  tliat  the  child  should  be  of  tlie  father's  condition.  The  Roman  law  knew  no 
slaves  but  such  as  were  chattels ;  but  under  the  feudal  codes  the  bondman  and  bond- 
woman were  legal  persons ;  the  issue  therefore  was  not  regarded  merely  as  the  in- 
crease of  property,  and  though  they  followed  the  condition  of  their  parents,  yet,  with 
some  Germanic  or  Gothic  nations,  the  children  of  serfs  belonging  to  different  i'eudal 
lords,  were  divided  by  an  "  alterna  vernarum  partitio.  "  Heinec.  u.  s.  note.  Where  the 
parents  were  of  different  conditions  the  issue  generally  followed  that  of  the  father  as 
in  the  English  law:  Bla.  ii.  94,  ('o.  Litt.  §  187,  and  notes;  though  a  rule  of  alterna- 
tion as  between  the  children  of  a  neif  and  a  freeman  prevailed  iu  some  parts;  see 
Glanvill,  lib.  5,  c.  C ;  and  the  same  general  rule  seems,  from  Littleton  and  Houard,  to 
have  been  Xorman  law,  though  Barrington  on  Stat,  p  249,  n.,  supposes  the  rule  in 
France  to  have  followed  the  civil  law,  citing  the  proverb — La  verge  annoblist  et  la  von- 
tre  affranchist.  The  phrase — partus  sequitur  ventrem  is  not,  I  believe,  to  be  fotuid  in 
the  Corpus  Juris,  and  probably  originated  with  the  modern  civilians.  But  the  point 
to  be  noticed  is,  that  the  condition  of  the  issue  of  legal  persons  in  bondage,  whether 
bom  in  wedlock  or  not,  depended  on  a  local  law  or  custom, — ^jus  propriuni,  uot  jus  gen- 
tium.    Compare  Foi-tescue  de  Laud.  c.  42. 


212  SLAVERY    BY    COMMON    LAW. 

and  statute  laws  establishinf:^  slaveiy,  was  different  from  that  of 
iiie  colonial  courts.  And  however  far  the  colonial  courts  may 
have  been  bound  by  the  local  law  of  England,  as  ascertained  at 
the  time  of  the  first  exercise  of  their  judicial  jiower,  they  were 
not  held  to  modify  the  common  law,  as  it  had  thus  grown  up 
under  their  own  exposition  and  acquired  a  local  character,  by 
following  the  later  English  decisions. 

§  205.  Thus  the  condition  of  slavery,  if  unknown  to  the  law 
of  England,  nevertheless  became  established  under  the  common 
law  of  the  several  colonies ;  which  however,  being  a  local  law 
only,  was  entirely  distinct,  in  its  origin  and  authority,  and  in 
its  territorial  and  personal  extent,  from  that  common  law  which 
was  national,  in  those  attributes,  and  which  was,  in  each  part 
of  the  Empire,  the  common  measure  of  the  personal  rights  of 
the  English-born  subject  and  his  descendants.  The  colonial 
Governments  appear  to  have  exercised,  without  question,  an  un- 
limited control  over  the  condition  of  such  persons  of  the  Afri- 
can and  Indian  races  as  were  domiciled  inhabitants  of  their 
several  territories  ;  that  is  to  say,  their  legislation,  in  respect 
to  such  persons,  does  not  appear  to  have  been  at  any  time  re- 
stricted by  any  of  the  charter  provisions.'  The  legislation  of 
the  several  colonies  in  reference  to  slaves  will  be  collected  in  the 
next  chapter  :  but  under  the  view  which  has  been  herein  taken 
it  is  not  necessary  to  cite  it  in  this  place  as  establishing  chattel 
slavery.  It  will  be  seen  that,  in  the  statutes  of  each  colony, 
slavery  is  viewed  as  an  existing  institution  of  law.' 

'  This  point  will  be  farther  considered  in  the  commencement  of  the  next  chapter. 

'  Seville  i».  Chretien,  (1817,)  5  Martin's  Louisiana  R.  275.  "It  is  an  admitted 
principle,  that  slavery  has  been  permitted  and  tolerated  in  all  the  colonies  established 
in  America  by  the  mother  country.  Not  only  of  Africans,  but  also  of  Indians.  No 
legislative  act  of  the  colonies  can  be  found  in  relation  to  it." 

"Connecticut  Revised  Laws  of  1821;  Title  93,  Slavery;  note— "  Slavery  was 
never  directly  established  by  statute ;  but  has  been  indirectly  sanctioned  by  various 
statutes,  and  frequently  recognized  by  courts,  so  that  it  may  be  said  to  have  been  es- 
tablished by  law." 

"By  custom  or  statute,  whether  legal  or  illegal,  slavery  existed  [A.  D.  1750]  as  a 
fact  in  every  one  of  the  Anglo-American  colonies,"  2  Hild.  419,  which  see  also  for  a 
summary  of  the  condition  and  numbers  of  slaves  at  that  time. 

Even  in  Georgia,  where  until  the  year  1749  (see  Stevens'  History  of  Ga.  285,  312  ) 
it  was  not  permitted,  it  is  held  not  to  have  been  introduced  by  positive  legislation.  By 
the  Court,  in  Neal  y.  Farmer,  (1851,)  9  Geo.  R.  580,  it  is  said— "'The  title  to  a 
slave  in  Georgia  now  and  under  the  colonial  government  is  not  and  was  not  derived 


MANUMISSION.  213 

§  206.  According  to  the  definitions  given  in  the  first  chap- 
ter, legal  relations  can  exist  only  as  the  effects  of  some  law, — 
some  rule  identified  with  the  juridical  will  of  the  state.  A 
natural  person  held  in  chattel  bondage  cannot  acquire  individu- 
al or  relative  rights,  except  under  such  law  or  juridical  will ; 
to  be  ascertained  from  positive  legislation  or  by  the  judicial  ap- 
plication of  natural  reason.  It  is"  by  the  recognition  of  univer- 
sal jurisprudence  or  the  law  of  nations,  under  this  judicial 
action,  that  the  act  of  the  master  renouncing  his  right  in  re- 
spect to  the  slave,  or  setting  him  free  from  his  bondage,  has 
been  held,  wherever  chattel  slavery  has  been  known,  to  invest 
the  natural  persons  so  set  free  or  manumitted,  with  individual 
rights  and  a  capacity  for  relative  rights.  Manumission,  that 
i^the  legal  consequence  of  the  master's  act,  and  the  condition 
of  a  libertinus  or  freed  person,  is,  in  the  Institutes,  ascribed  to 
the  jus  gentium.^  During  the  earlier  centuries  of  the  Eoman 
Empire,  three  conditions  were  recognized  among  the  Libertini 
or  Freedmen  ;  all,  however,  inferior  to  that  of  the  Ingenuus  or 
Free-born.  But^the  descendants  of  a  libertinus  were  not  dis- 
tinguished from  other  free  born  persons.     Justinian  not   only 


^from  positive  law.  'The  faculty  of  holding  slaves  was  derived  from  the  Trustees  of 
the  Colony  acting  under  authority  of  the  British  crown,  as  a  civil  right  in  1751,  by  an 
ordinance  of  that  board.  Before  that  time  their  introduction  was  prohibited.  The 
regulation  of  slave  property  is  as  much  the  province  of  municipal  law  as  the  regula- 
tion of  any  other  property  and  its  protection  equally  its  obligation:  but  we  deny  that 
property  in  slaves  and  the  title  by  which  they  are  held,  are  creatures  of  statutory 
law."  It  is  not  very  clear  what  meaning  is  to  be  attached  to  the  term  '■'aciril  right;" 
or  how  the  right  can  have  been  derived  from  the  Trustees  and  yet  not  have  originated  . 
in  positive  law,  i.  e.  legislation.  The  idea  is  that  before  1751,  the  colonists  of  Geor- 
gia were  under  a  disability  inflicted  by  the  policy  of  the  imperial  Government,  (see 
p.  575  of  the  report,)  in  acquiring  a  certain  kind  of  property,  or  from  enjoying  their  in- 
dividual right  to  acquire  property,  in  the  same  degree  as  others ; — which  disability 
was  removed  by  the  administrative  regulation  or  ordinance  of  the  Trustees.  Whether 
important  results  which  might  follow  a  general  recognition  of  the  doctrine  that  at  the 
present  day  slavery  is  a  constittUio  juris  f/enliujn  were  considered  in  this  decision,  does 
not  appear.  The  question  actually  before  the  court  was  whether  the  ownt-r  could  re- 
cover from  the  slayer  the  value  of  a  slave  killed  by  hira,  without  first  suing  him  to 
conviction  in  a  criminal  court. 

'  Inst.  Lib.  I.  tit.  5,  procem.  (ante  p.  150,)  and  Dig.  Lib.  I.  tit.  1,  §  -t.  The  state 
having  jurisdiction  of  the  person  who  is  held  as  a  slave,  may,  of  course,  set  him  tree 
by  its  legislative  power.  This  will  be  the  effect  of  a  jus  proprimn  :  but,  tlie  resulting 
condition  or  status  will  be  jure  gentium  in  this  case,  as  where  the  manumission  was  the 
master's  act.  It  will  therefore  be  afterwards  judicially  recognized  everywhere  ;  unless 
some  local  law,  jus  proprium,  forbids  it.  The  importance  of  this  distinction  can  only 
be  shown  in  the  application  of  private  international  law. 


214  ROMAN    LAW    OF    MANUMISSION. 

abolished  tliis  distinction  among  the  lihertini,  but  also  made 
all  free  persons  (libertos)  citizens  uf  Rome,  abolishing  all  legal 
difference  between  the  status  of  the  enfranchised  (libertini)  and 
the  free  born,  (ingenui.)  From  the  recital  in  the  enactment,  it 
appears  that  the  first,  if  not  the  second  also,  of  these  changes 
was  a  return  to  the  ancient  usage  of  the  Republic'  The  rule 
of  the  Roman  Imperial  law,  as  the  exposition  of  a  universal 
jurisprudence,  received  judicial  recognition  in  the  American 
colonies.' 

§  207.  If  the  laiu  of  nations  has  in  modern  times,  or  had 
during  the  colonial  period,  a  limited  personal  extent  or  was  dif- 
ferent in  its  application  to  different  races  of  men  only  while 
distinguishing  between  mankind  as  either  bond  or  free — either 
chattels  or  persons,  the  necessary  inference  would  be,  that  on 

'  Inst.  Lib.  I.  tit.  5,  §  3  ;  De  libertinorum  divi.*ione  sublata ;  and  Cod.  7,  tit.  5,  1.  1, 
tit.  6,  1.  2.  Smith's  Diet,  antiq.  t-oc. — Infffijiuus,  Libertux.  -Mr.  Justice  Daniel,  in  19 
Howard,  p.  477,  Dred  Scott's  case,  appears  to  have  adopted  Cooper's  version  of  the  In- 
stitutes, in  which  ingenuns  is  mistranslated  freeman.  For  the  changes  in  the  Roman 
law  on  these  points,  according  to  the  latest  researches,  see  The  New  Englander,  Aug. 
18.57,  in  an  article  on  Judge  Daniel's  statement  of  them ;  by  President  Woolsev,  of 
Yale  College.  * 

2  To  some  it  may  seem  a  singular  refinement  to  suppose  juridical  authority  neces- 
sary in  ascribing  individual  (absolute)  ri<;hts  to  the  slave,  when  the  ma.'-ter  reh'nquishes 
his  legal  claims.  But,  if  legal  rights  exist  by  the  ascertained  will  of  the  state,  [^ante 
§  21  and  p  37,  n.  1,)  how  otherwi.^e  can  a  chattel  or  thing  become  invested  with  them .' 
Other  chattels,  when  derelict  by  the  owner,  are  still  chattels,  and  belong  to  whoever  # 
may  then  tirst  take  possession  of  them.  The  doctrine  of  manumission,  as  explained  in 
the  Institutes,  shows  that  even  in  the  Roman  law  the  slave  was  only  "  instar  rerum," 
[ante  p.  ir)3,  n.  1,)  and  that  a  personality  independent  of  positive  law  was  recognised 
to  exist,  as  by  a  condition  of  things,  or  a  law  in  the  serondm-y  sense,  (ante  §§  1,  2,)  or  a 
law  of  nature  in  that  sense,  which  became  manifest  in  the  possession  of  individual  rights 
whenever  the  antagonistic  right  of  the  master  was  relinquished.  See  Inst.  Lib.  1 ,  tit. 
5.  De  Libertinis.  Dejinitio  et  origo  libertinorum  et  manumissionis.  The  reason- 
ing of  Mr.  Justice  Daniel  in  Dred  Scott's  case,  19  Howard,  p.  480,  ignores  the  fact 
that  the  consequences  of  the  master's  act  of  manumission  were  jure  gentium,  and 
therefore  judicially  recognized  everywhere,  unless  such  recognition  had  been  forbid- 
den by  some  jus  proprium  of  the  forum.  His  language  is — "The  master  might 
abdicate  or  abandon  his  interest  or  ownership  in  his  property,  but  his  act  would  be  a 
mere  abandonment.  It  seems  to  involve  an  absurdity  to  impute  to  it  the  investiture 
of  rights  which  the  sovereignty  alone  had  power  to  impart,"  &c.  The  question  in  the 
case  was  of  the  rights  of  citizenship ;  but  the  Judge's  argument  applies  equally  against 
the  acquisition  of  any  personal  right  on  manumission.  Undoubtedly,  the  investiture 
rests  on  the  sovereignty,  not  on  the  private  master.  But  the  tribunal  finds  the  will  of 
that  sovereignty  in  the  jus  gentium,  if  there  is  no  jus  proprium, — local  statute  or  cus- 
tomary law.  In  some  countries,  wherein  serfdom  existed  under  a  law  of  local  origin, 
the  Roman  law  of  manumission  has  not  been  applicable  Bodin,  in  Repub.  B.  i.  c.  .5, 
Knolle's  Tr.  p.  41,  after  stating  the  Roman  law — "which  law,  for  all  that,  we  use  not; 
for  in  this  realm  [France]  he  must  of  necessity  obtain  the  prince  his  letters  patents, 
which  have  always  used  to  restore  unto  manumised  men  and  of  servile  condition,  the 
state  of  freeboi'u  men,  and  to  blot  out  all  stain  of  their  old  slavery." 


BASIS    OF    FREE    CONDITIONS.  215 

passing  out  of  the  chattel  or  bond  condition,  the  subsequent 
condition  of  the  emancipated  African  or  Indian  would  be  deter- 
mined by  the  same  principles  which  regulated  the  condition  of 
other  persons  in  the  same  jurisdiction.  But  though  the  law 
which  in  any  colony  determined  the  condition  of  the  enfran- 
chised African  or  Indian  may  have,  in  its  effects,  been  similar 
to  that  determining  the  condition  of  the  colonists  of  English 
birth  or  descent,  it  was  not  the  same  law  either  in  its  political 
foundation  or  in  its  territorial  and  personal  extent.  The  fact 
of  emancipation  did  not  of  itself  place  the  African  or  Indian 
within  the  pale  of  the  law  applying  to  the  English  colonist,  at 
least  not  so  far  as  it  was  a  law  resting,  as  was  before  shown, 
upon  a  national  as  well  as  a  provincial  authority.  The  condi- 
tion of  the  free  African  or  Indian  was  determined  by  statutes 
proceeding  from  the  colonial  or  from  the  imperial  authority, 
according  to  the  nature  of  the  powers  separately  held  by  each 
under  the  public  law  of  the  empire,  or  by  a  judicial  application 
under  either  colonial  or  imperial  authority,  of  rules  derived  from 
natural  reason.  But  the  law  so  obtaining  was  always  the  local 
law  of  a  colony  in  respect  to  its  extent,  and  not  a  national 
law.  When  once  recognized  as  a  legal  person,  the  law  of  Eng- 
land was  indeed  the  exposition  of  a  law  of  natural  reason,  judi- 
cially receivable  in  determining  the  private  relations  of  the  Af- 
rican or  Indian  subject,  as  well  as  those  of  the  English  colonist. 
But  the  basis  of  the  rights  of  the  former  was  not  necessarily  the 
same  as  that  of  the  last.  The  law  under  which  they  existed 
had  not,  necessarily,  the  same  national  character,  or  the  same 
territorial  and  personal  extent.  That  was  determined  accord- 
ing to  the  public  law,  by  a  distinction  of  race  or  descent.  The 
condition  or  status  of  the  emancipated  negro  or  free  Indian  was 
in  none  of  the  colonies  equal,  as  a  free  condition,  to  that  of  the 
white  colonist ;  even  where  the  law  of  the  colony  made  no  dis- 
tinction in  social  relations  between  him  and  the  white  inhab- 
itant. The  public  law  took  no  notice  of  his  rights,  and  the 
foundation  of  private  rights  in  public  law  was  an  essential  fea- 
ture in  the  civil  liberty  of  the  English  colonist.  Whatever  degree 
of  liberty  of  action  the  negro  or  Indian  might  enjoy  in  practice. 


216  A   LOCAL    LAW    OF    CONDITION. 

his  freedom  was  inferior  to  that  of  the  white  citizen  in  the  na- 
ture of  its  guarantees. 

§  208.  Thus,  simultaneously  with  the  establishment  in  this 
continent,  by  the  colonists  or  by  the  national  authority,  of  the 
law  of  status  or  condition  for  persons  in  England,  to  be  the 
system  of  private  municipal  (internal)  law,  which,  as  a  personal 
law,  was  to  maintain  the  rights  and  liberties  of  the  English 
colonists  and  their  descendants,  was  established  through  like 
authority  and  with  equally /ura^  character,  another  department 
or  system  of  laws  ; — a  system  which,  so  far  at  least  as  it  sup- 
ported slavery  or  involuntary  servitude,  is  commonly  held  at  the 
present  day  to  have  always  been  contrary  to  that  which  pre- 
vailed as  the  territorial  law  of  England.  This  system  also  had, 
in  the  several  colonies,  the  character  of  a  personal  law  in  being 
applicable  to  a  portion  of  the  inhabitants  who  had  no  claim  by 
birthright  or  inheritance  to  participate  in  the  protection  of  the 
laws  of  England — the  common  law  of  the  rights  and  Uberties  of 
Enulishmen,' 


^  SirW.  Jones'  Works,  4to.,  vol.  III.,  p.  48.  Charge  to  Gr.and  Jury  at  Calcutta, 
June  9,  1792.  "It  is  agreed  by  all  who  have  coolly  and  impartially  studied  our  no- 
ble constitution,  as  declared  by  many  statutes  from  the  Great  Charter  to  the  Bill  of 
Rights,  all  which  you  know  are  solemn  recognitions  of",  our  ancient  public  law,  that 
three  peculiar  advantages  are  conferred  by  that  sacred  law  on  the  people  of  England 
or  on  all  subjects  who  are  not  noble,  but  may,  if  they  please,  be  independent ;  first  a  distinct, 
■unalienable  third  share  of  the  legislative  power ;  next  a  right,  coupled  with  a  duty, 
of  keeping  and  using  arms  for  the  defence  of  their  persons  and  habitations  as  well 
of  their  several  counties,  when  the  slieriflF  shall  call  for  their  aid ;  thirdly,  the  right 
of  being  tried,  when  impleaded  or  accused,  by  their  equals  freely  chosen,  instead  of 
appointed  officers  to  whom  they  cannot  except,"  p.  49 — "  and  "we  may  thence  infer 
that  if  any  acknowledged  subjects  of  Britain  (for  a  difiFerent  faith  or  complexion  can 
make  no  difference  in  justice  and  right)  shall  be  tried,  convicted  and  punished  by  a 
summary  jurisdiction,  however  constituted,  for  petit  larcenies,  breaches  of  the  peace,  and 
other  misdemeanors,"  &c.  The  law  was  certainly  never  so  extended  in  the  Ameri- 
can colonies.  In  1833,  statutes  in  respect  to  India  were  proposed  in  Parliament,  on  s 
plan  which  should  "  effect  a  complete  identification  of  Europeans  and  natives  in  the 
eye  of  the- law,  without  regard  to  color,  birth,  or  religion."  2  Kent,  (3d  ed.)  p.  73  n. 
citing  Ann.  Reg.  for  1833,  p.  184,  which  see,  and  Lord  EUenborough's  assertions,  p. 
186,  of  the  impossibility  of  producing  such  effect.  That  the  British  Government, 
while  conferring  civil  rights  on  slaves  in  India,  did  not  "  forcibly  manumit  "  them, 
see  H.  St.  G.  Tucker's  Memorials  of  Indian  Gov.  p.  434,  Editor's  note. 

Forbes  v.  Cochran,  (1824,)  2  Bam.  &  Cress.  463,  Holroyd  J.  "  Put  the  case  of  an 
uninhabited  island,  discovered  and  colonized  by  the  subjects  of  this  country ;  the  in- 
habitants would  be  protected  and  governed  by  the  laws  of  this  country.  In  the  case 
of  a  conquered  couutry,  indeed,  the  old  laws  would  prevail  until  altered  by  the  king  in 
council;  but  in  the  case  of  the  newly  discovered  couutry,  freedom  would  be  as  much 
the  inheritance  of  the  iuhabitants  and  their  children  as  if  they  were  treading  on  the 
soil  of  England."     The  correctness  of  this  proposition  at  any  particular  period,  (if  in- 


ALIEN    WHITE   PERSONS. 


217 


§  209.  But  under  the  classification  given  in  this  chapter' 
of  persons  within  the  colonies  whose  legal  condition  was  not 
determined  by  the  common  law  of  England  as  a  personal  law 
by  reason  of  birth  in  the  realm  of  Great  Britain,  or  their  descent 
from  ancestors  of  English  birth,  another  description  of  aliens 
to  the  British  empire  is  included ;  viz.,  persons  of  European  or 
Caucasian^  race,  the  subjects  of  those  states  which,  by  the  sup- 
posed possession  of  superior  knowledge  and  power,  are  known  in 
international  law  as  civilized  states  ;  the  authors  and  expositors 
of  universal  jurisprudence  or  the  laio  of  nations,  herein  before 
described  as  a  judicial  rule,  and  the  authors  and  subjects  of  that 
rule  of  action  which,  though  not  having  the  force  of  laio  for  such 
states,  is  herein  called  international  law.  The  condition  of 
these  persons,  when  appearing  as  aliens  within  the  dominion  of 
the  British  empire  would  be  determined  by  private  international 
law,  derived  from  legislation  and  judicial  exposition  of  the  rules 
of  natural  reason,  until  they  should  have  acquired  a  domicil,  as 
that  term  is  understood  in  international  law  ;  when  they  would 
become  the  subjects  of  that  which  is  called,  in  contradistinction, 
municipal,  or  more  properly,  internal  or  local  law.  The  chattel 
slavery  of  whites  or  Europeans  as  the  property  of  legal  persons, 
having  long  before  become  unknown  under  the  various  systems 
of  municipal  (national)  law  in  Europe,  all  aliens  of  this  descrip- 
tion appeared  within  the  colonies  as  legal  persons,  whose  rights, 
as  such,  while  they  remained  aliens,  or,  at  least,  while  they  only 
sustained  relations  incident  to  foreign  commerce  or  to  war, 
would  fall  under  the  scope  of  the  imperial  authority,  according 
to  the  division  of  power  which  was  herein  before  stated  as  the 
public  law  of  the  empire.^  Upon  their  becoming  domiciled  in- 
habitants of  a  colony,  their  relations,  as  persons,  to  the  rest  of 
the  community,  would  have  been  subject  to  provincial  and  na- 

tended  to  include  persons  not  of  English  birth  or  descent,)  will  depend  upon  tlie  rules 
which  may  at  that  time  be  recognized  in  the  English  courts  as  being  universal  in  their 
extent,  and  upon  the  jus  gentium  then  recognized  in  English  jurisprudence, 

»  §  195. 

'  Although  there  are  manifest  objections  to  the  use  of  this  term,  it  is  here  adopted 
as  having  a  tolerably  well  defined  meaning,  in  connection  with  this  subject.  "  ^Ethi- 
opian and  Caucasian  races." — 1  Banc.  177.     2  same,  464:. 

'  Ante,  §  131. 


218  INDENTURED  SERVANTS, 

tional  authority  in  the  same  mauner  as  those  of  the  English- 
born  colonists.  In  most,  if  not  in  all  the  charters,  provision 
was  made  that  the  colonists  of  other  European  nations  than 
the  English  should  participate  in  the  privileges  of  those  of  Eng- 
lish birth,  and  acts  of  naturalization  were  passed  at  different 
times,  by  the  imperial  and  colonial  authorities,  placing  the 
European  alien  u])on  an  equal  f  )oting  of  privilege  with  the 
English  ;  requiring,  of  course,  the  profession  of  allegiance  to  the 
crown  and  to  the  government  of  the  colony. ' 

§  210.  Under  the  system  of  colonization  adopted  by  the 
European  states  possessing  territory  in  North  America,  there 
also  existed  another  kind  of  bondage,  differing  from  slavery  in 
its  origin  and  extent,  being,  strictly  speaking,  founded  on  mu- 
nicipal law  alone,  (jus  civile  or  jiroprium.)  This  species  of  ser- 
vitude became  obsolete  about  the  time  of  the  war  of  the 
revolution,  and  now  is  of  importance  only  as  casting  some  light 
on  the  legal  nature  of  a  free  condition  and  absolute  slavery 
during  the  colonial  period.  A  portion  of  the  white  settlers  in 
all  the  colonies  were  those  known  as  indentured  servants  or 
redemptioners,  who  were  English  or  other  Europeans,  bound 
to  personal  service,  without  wages,  different  from  any  known  in 
England,  but  analogous  to  that  of  minor  apprentices.^  Such 
persons  were  recognized  in  the  colonial  legislation  as  a  distinct 
class  among  those  held  to  enforced  servitude,  though  many  of 
the  statutes  respecting  them  applied  to  slaves  also. 

The  service  of  persons  of  this  class  might  either  have  been 
involuntary  from  its  commencement,  or  have  originated  in  their 
own  consent  ;  some  having  bound  themselves  to  serve  in  the  plan- 
tations during  a  certain  number  of  years,  in  return  for  the  ex- 
penses of  their  transjiortation  and  support.  The  servitude  of 
others  was  the  penalty  of  crime  committed  in  the  mother  country, 

^  As  to  the  interpretation  of  these  acts  of  legislation  by  a  reference  to  personal  dis- 
tinctions founded  on  the  law  of  nations,  see  ante  §  201. 

That  colonial  acts  of  naturalization  were  of  force  only  in  and  for  the  colony,  see  1 
Chal.  Opinions,  pp.  343-4.  By  the  13  Geo.  2,  c.  7  (1740)  "an  act  for  naturalizing 
such  foreign  Protestants  and  others,  therein  mentioned,  as  are  settled,  or  shall  settle, 
in  any  of  his  Majesty's  colonies  in  America."  Such  persons  residing  seven  years,  and 
taking  the  oaths,  to  be  deemed  natural  born  subjects. 

''  By  the  common  law  no  person  could  be  sent  out  of  the  kingdom  against  his  will. 
2  Co.  Inst.  46;  1  Bla.  Comm.  137;  2  Hawk.  P.  C,  c.  33.  Ordinary  apprentices  can- 
not be  60  sent  out.     Coventry  v.  Woodall,  Hob.  134 ;  1  Brownl.  pi.  67. 


ENGLISH    WHITE    SERVANTS.  219 

like  that  existing  in  the  modern  English  penal  colonies.  Some 
were  ordinary  criminals  or  vagrants  sent  from  English  jails  or 
workhouses,  either  in  commutation  of  imprisonment  or  hy  virtue 
of  some  special  statute. '  The  exportation  of  such  persons  con- 
tinued for  a  long  time  to  be  an  established  part  of  British  crim- 
inal discipline,'^  and  when  this  class  of  indentured  servants 
became  the  most  numerous,  their  introduction  was  probably 
against  the  wishes  of  the  colonists.^  Many  of  the  royalists 
taken  prisoners  by  the  parKamentary  forces  during  the  civil 
war%  and  insurgents  in  Penruddock's  and  Monmouth's  rebellion 
were  also  sent  out  to  serve  in  the  same  condition.  It  may  be 
supposed,  from  various  publications  of  that  day,  that  there  were 
many  instances  in  which  persons  were  feloniously  kidnapped  in 
Endand  and  sold  in  the  West  Indian  islands  or  America,  either 
as  servants  for  a  term  of  years,  or  as  slaves  for  life.^ 

As  will  appear  from  colonial  statutes  enumerated  in  the 
next  chapter,  the  local  governments  assumed  the  power  of  sub- 
jecting free  white  persons  to  this  condition,  as  a  punishment  for 
acts  which  were  not  so  punishable  either  at  common  law  or  by 
any  English  statute.* 

'  Chalmers,  Pol.  Ann.  p.  47,  observes  that  the  statute,  39  Eliz.  c.  4,  which  enacted 
"that  dangerous  rogues  might  be  banished  out  of  the  realm,"  was  the  only  law  which, 
in  1619,  justified  the  infliction  of  expulsion  as  a  punishment ;  but  that  the  transporta- 
tion of  obnoxious  persons  to  Virginia,  at  that  time,  was  probably  vindicated,  by  the  ad- 
ministration, on  "prerogative."  By  §  13  of  31  Car.  2,  c.  2,  (the  Habeas  Corpus  Act,) 
persons  contracting  to  be  transported  beyond  seas  are  excepted  from  its  provisions. 
By  law  of  the  Scottish  Parliament,  in  1671,  against  conventicles,  recusants  might  be 
punished  by  banishment  to  the  plantations.  Hume,  ch.  66.  Some  were  probably  sold 
as  servants,  to  defray  the  cost  of  transportation.  4  Geo.  I.  c.  11,  §  1,  allows  sentence 
of  transportation  to  America,  and  empowers  persons  transpoi-ting  convicts  to  assign 
their  services.  By  §  5,  merchants  and  others  may  contract  with  minors,  above  fifteen 
years,  to  serve  not  exceeding  eight  years  in  America.  6  Geo.  1,  c.  33,  and  4  Geo.  2, 
c.  11,  provide  for  transportation  of  criminals  to  America.  By  17  Geo.  2,  c.  5,  §  28, 
vagrants,  whose  settlement  could  not  be  found,  might  be  sent  to  the  plantations. 

'^  There  were  such  persons  also  in  the  Danish  colony  of  New  Sweden,  see  Campa- 
nius  Holm,  ch.  vii.  in  Mem.  of  PennsyL  Hist.  Soc,  vol.  iii.  1st  Part. 

^  1  Hildr.  119 ;  Walsh's  Appeal,  sec.  ix. ;  post  ch.  vi.,  Virginia  L.  of  1670,  Pennsyl. 
L.  of  1722. 

*  Godwin's  Commonwealth,  III.,  273;  IV.,  172.;  Stevens'  Georgia,  p.  294; 
Walsh's  Appeal,  p.  38.  For  treatment  of  the  Scots  prisoners  in  Mass.,  see  Hutch. 
Coll.,  235. 

'  2  Graham's  Hist.  421,  and  note.  -1  Hildr.  99,  193,  356,  509.  2  do.,  26.3.  1 
Banc.  175 ;  2  Banc.  251 ;  2  Klliot's  N.  E.,  p.  176. 

*  See  post  ch.  vi.  Maryl.  Laws,  1663,  c.  3;  1676,  c.  2 — marriage  of  white  women 
with  slaves.  Conn,  code  of  16.50 — satisfaction  of  debts  by  servitude.  Mass.  L.,  March, 
1632 ;   1  Mass.  Records,  pp.  246,  269,  slaveiy  mentioned  as  the  punishment  inflicted 


220  LIMITATION    OF    SERVITUDE. 

§  211.  These  servants  or  reclcnn)tionei:8  were  known  in  the 
colonies  either  as  "  indented  8ervants/'  whose  term  of  service 
was  determined  by  their  original  contract,  or  by  the  penal  sen- 
tence which  subjected  them  to  this  condition,  or  as  "  servants 
sold  for  the  custom  ;"  those  so  designated  being,  probably,  such 
as  were  brought  into  the  colonies  without  any  special  sentence 
or  contract,  beyond  the  obligation  incurred  for  the  expense  of 
their  transport,  to  determine  their  term  of  service,  which  was 
fixed  by  colonial  statutes  according  to  circumstances  of  age 
and  sex.' 

The  legal  condition  of  these  persons  was  essentially  different 
from  that  of  chattel  slaves  in  its  origin  and  duration  ;  since  it 
rested  altogether  on  law  of  national  origin,'  (i.  c.  a  Jus proprium,) 
and  in  the  fact  that  the  personality  of  the  slave  was  recognized 
during  its  existence,  and  that  it  was  limited  to  a  specific  time. 
But  notwithstanding  this  difierence  and  the  fact  that  laws 
were  enacted  for  their  special  protection  recognizing  them  as 
legal  persons,  yet  their  general  condition  and  disabilities,  during 
its  continuance,  seem  in  many  respects  to  have  been  the  same, 
and  much  of  the  colonial  legislation — that  of  some  of  the  north- 
ern colonies  at  least — in  reference  to  servants,  applied  both  to 
such  persons  and  to  negro  and  Indian  slaves.  Some  of  these 
laws  will  be  noticed  hereafter  in  connection  with  the  statutes 
relating  to  negro  slaves.^ 

At  the  expiration  of  the  fixed  period  of  servitude,  the  in- 
dentured servant  or  redemptioner  recovered,  with  his  liberty,  all 
the  rights  of  a  free  person  under  the  laws  of  England,  and  there 
was  nothing  to  distinguish  his  condition  in  this  respect  from 
that  of  other  free  inhabitants  of  English  descent,  he  being  then 
equally  entitled  to  the  protection  of  that  law  throughout  the 
British  empire.^ 

on  certain  delinquents,  (1638.)  Order  of  the  General  Court,  1G59,  for  the  sale  of 
Quakers. 

■  Compare  post,  ch.  vi.,  Virginia  Laws,  from  16i2  to  16G0. 

^  Unless,  when  resting  on  a  contract,  it  could  have  heen  held  to  be  valid  by  uni- 
versal jurisprudence  or  the  jus  gentium.  But  comp.  ante  p.  139,  n.  for  the  common 
law  doctrine  as  to  contracts  for  service. 

'  The  English  statute,  29  Geo.  2,  c.  35,  §  1,  provides  for  enlisting  indented  servants 
in  America. 

*  2,Hildr.  1st  ser.,  p.  428.    In  1777,  servants  enlisted  in  the  Continental  army  were 


EXTENSION   OF    THE   EMPIRE,.  221 

§  212.  It  is  not  necessary  to  trace  historically  the  changes 
by  which  the  North  American  colonies,  originally  held  by  other 
nations  than  the  English,  became  incorporated  into  the  British 
empire,  or  the  laws  which  prevailed  therein,  determining  the 
condition  of  j)rivate  persons  before  that  period,  or  the  legislative 
acts  of  the  imperial  government,  by  which  the  common  law  and 
statutes  of  England  became  extended  over  them,  in  the  same 
manner  and  degree  as  over  the  colonies  originally  settled  by  the 
English.  However  much  the  rights  of  the  white  inhabitants  of 
those  colonies  may  have  differed  in  their  public  or  political 
character'  from  the  liberties  of  the  English  colonists,  they  were 
substantially  of  the  same  character  in  their  practical  exercise  in 
social  relations.  In  all  the  colonies  the  same  legal  distinctions 
accompanied  a  .difference  of  race  or  physical  constitution,  and 
upon  the  acquisition  of  those  colonies  by  the  British  crown,  the 
civil  or  social  rights  of  the  free  inhabitants  were  secured  to 
them,  under  the  new  sovereignty,  on  the  transfer  of  their  alle- 
giance by  international  treaties. 

declared  freemen  by  the  Congress,  with  the  understanding  that  compensation  was  to 
be  made  to  the  masters,  For  loss  of  service,  3  Hildr.  190.  The  war  stopped  the  importa- 
tion of  indented  sen-ants,  and  it  was  not  revived  to  any  great  extent  afterwards.  Some 
Germans  were  imported  about  1789:  but  Acts  of  Parliament  prevented  the  indent- 
ing of  laborers  in  England  for  transportation  to  America  :  1  Hildr.  2d  series,  p.  93 ; 
25  Geo.  3,  c.  67,  continued  by  later  acts  In  Walsh's  Appeal,  Pref.  p.  29,  the  author 
speaks  of  vessels  arriving  at  Philadelphia  in  1816,  1817,  "laden  with  redemptionera 
from  the  continent  of  Europe." 

'  Ch.  XV.  of  Banc.  U.  S.  In  the  Swedish  colony  of  New  Sweden  the  law  rested 
entirely  on  the  home  sovereignty,  except  the  police  power.  See  Governor's  commis- 
sion in  ilulford's  Hist,  of  New  Jersey,  p.  86.  O'Callaghan's  Hist,  of  New  Nether- 
lands, vol.  1,  p.  90  :  "The  director-general  and  his  council  were  invested  with  all 
powers,  judicial,  legislative  and  executive,  subject,  some  supposed,  to  appeal  to  Hol- 
land;  but  the  will  of  the  Company,  expressed  in  their  instructions,  or  declared  in  their 
marine  or  military  ordinances,  was  to  be  the  law  in  New  Netherland,  excepting  in  cases 
not  specially  provided  for,  where  the  Roman  law,  the  imperial  statutes  of  Charles 
v.,  the  edicts,  resolutions  and  customs  of  Fatherland,  were  to  be  received  as  the  para- 
moimt  rule  of  action."  P.  101  :  "  The  director  and  council  had  supreme,  executive, 
and  legislative  authority  in  the  colony."  See  also  Moulton's  Hist,  of  New  York,  vol. 
I.,  part  2,  p.  369,  also  B.  F.  Butler's  Discourse  on  the  Constitutional  History  of  the 
State  of  N.  Y.,  pp.  14,  15,  20. 


CHAPTER    VI. 

THE  ESTABLISHMENT    OF    MUNICIPAL    LAW    IN    THE   COLONIES  ; 

THE    SUBJECT    CONTINUED.       LOCAL    LEGISLATION    DETERMIN- 
ING CONDITIONS  OF  FREEDOM  OR  OF  BONDAGE. 

§  213.  It  has  been  attempted  in  the  three  preceding  chap- 
ters to  exhibit  the  origin  and  extent  of  i^ositive'  laws  in  the 
American  colonies  ;  in  doing  which,  it  was  necessary  to  regard 
those  laws  both  as  public  and  as  private  law  ;  that  is,  in  other 
words,  to  consider  both  the  location  of  the  sovereign  legislative 
or  juridical  power,  which  was  the  source  and  basis  of  the  pri- 
vate law,  and  its  actual  effects  upon  the  conditions  of  private 
persons  within  the  colonial  territory.  As  the  introduction  of 
that  law,  whether  public  or  private,  was  dependent  upon  the 
external  force  and  imperial  authority  of  the  crown  and  parlia- 
ment of  England,  it  was  in  those  chapters  considered  mainly  as 
the  law  of  one  nation  ;  irrespectively  of  those  local  distinctions 
which  the  separate  powers  of  the  several  colonies,  either  inde- 
pendently of,  or  in  co-operation  with,  the  imperial  authority, 
might  each,  in  accordance  with  the  public  and  national  law, 
create  within  their  respective  domains.  It  is  the  law  which 
thus  originated  in  legislative  or  juridical  power  acting  in  and 
for  the  several  colonies,  as  distinct  and  separate  jurisdictions, 
which,  in  its  effect  upon  conditions  of  freedom  and  its  opposites, 
is  the  subject  of  this  chapter. 

*  Meaning  that  law  which  was  both  internal  and  international,  and  commonly 
called  municipal,  but  more  properly  national  law,  ante,  §  53.  From  the  peculiar  dis- 
tribution of  legislative  power  which  existed  under  the  British  Empire,  the  term  nationai, 
if  employed  here,  would  be  liable  to  misconstruction. 


EXTENT    OF    THE    POWER.  223 

§  214.  The  legislative  power  of  tlie  colonial  government 
was,  as  has  been  shown,  indirectly  limited  by  the  national  guar- 
antee of  common  law  liberties  to  the  colonists  and  their  de- 
scendants. But  they  were  also  expressly  restricted  by  the 
charter  provision,  that  their  local  legislation  should  not  be  re- 
pugnant or  contrary  to  the  laws  of  England,  or  should  be  agreea- 
ble or  conformable,  as  nearly  as  might  be,  to  the  laws  of  Eng- 
land. The  effect  of  this  restriction  as  a  protection  to  private 
individuals  was  not  limited  in  the  charters  by  any  personal  dis- 
tinction expressed  therein.  But  it  appears,  as  has  already 
been  indicated  in  the  third  chapter,  that  in  determining  what 
rules  would  not  be  repugnant  to,  or  would  be  agreeable  to,  the 
laws  of  England,  the  colonial  assemblies  or  legislatures  claimed 
and  exercised  with  the  sanction  of  the  crown,  an  authority,  in 
reference  to  matters  of  internal  law,  which,  in  the  language  of 
Story,  might  "abrogate  every  part  of  the  common  law,  except 
that  which  united  the  colonies  to  the  parent  state  by  the  gen- 
eral ties  of  allegiance  and  dependency  ;  " '  or  that,  as  the  colonial 
tribunals  had  a  several  power  of  interpreting  and  applying  com- 
mon law  in  their  respective  jurisdictions,  they  practically  under 
the  revisory  power  of  the  king  in  council,  determined  how  far 
the  territorial  law  of  England  was  adapted  to  the  situation  of 
persons  and  things  within  the  colonial  jurisdiction  and  should 
control  the  creation  of  a  local  law.  The  existence  of  this  power 
was  illustrated  in  the  colonial  laws  of  descent  of  estates  and 
in  every  department  of  private  law.  It  appears  therefore  that 
the  charter  restriction  above  mentioned  did  not  prevent  the 
colonial  legislative  bodies  from  establishing,  with  the  sanction 
of  the  local  judicature,  a  rule  of  condition,  in  reference  to 
persons  not  protected  in  the  possession  of  individual  and  rela- 
tive rights  by  the  common  law  of  England  having  personal  ex- 
tent, different  from  any  known  to  that  law  and  ,  incompatible 
with  the  enjoyment    of  those  rights.'^     Besides,   as   has   been 

*  Story's  Comm,  §  163. 

*  A  distinguished  jurist  of  Virginia  has  said,  "  Local  circumstances,  likewise,  gave 
an  early  rise  to  a  less  justifiable  departure  from  the  principles  of  the  common  law  in 
some  of  the  colonies,  in  the  estabUshment  of  slavery ;  a  measure  not  to  be  reconciled 
either  to  the  prmciples  of  the  law  of  nature,  nor  even  to  the  most  arbitrary  establish- 


224  THE    POWER    RECOGNIZED. 

shown  in  the  fourth  chapter,  although  the  common  law  courts 
in  England,  at  some  point  of  time  anterior  to  the  inde})endence 
of  the  colonies,  decided  that  no  person  could  by  common  law 
be  held  as  a  slave  in  England,  yet  such  doctrine  was  by  no 
means  generally  received  during  the  seventeenth  and  the  earlier 
part  of  the  eigthteenth  century,  and  that,  in  fact,  negro  slaves 
were  held  and  sold,  as  persons  bound  to  involuntary  servitude, 
if  not  as  chattels,  in  England  during  that  period  ;  and  that  it 
seems  never  to  have  been  supposed  during  the  period  in  which 
the  colonial  statutes  establishing  such  conditions  were  enacted, 
that  the  slavery  of  Africans  or  Indians  and  their  descendants 
in  the  colonial  dependencies  of  the  Empire  was  rei)ugnant  to, 
or  not  conformable  or  agreeable  to,  the  law  of  England.  And 
if  the  common  law  afterwards  received  from  English  tribunals 
a  different  construction,  such  a  change  could  have  had  no  effect 
upon  colonial  statutes  which,  at  the  time  of  enactment,  were 
sanctioned  by  the  contemporaneous  exposition  of  the  laws  of 
England. 

As  will  be  more  fully  shown  in  the  succeeding  chapter,  the 

later  English  cases  which  unqualifiedly  deny  the  master's  claim 
to  service  must  be  taken  to  mean  that  such  claim*  could  not  be 
maintained  because  the  territorial  law  attributed  liberty  to 
each  person  within  the  realm  of  England,  and  that  they  go  no 
farther.  However  unlawful  in  England,  at  any  time,  there  is 
not  a  judicial  doubt  on  record  that  it  might  be  lawful  in  the 
English  colonies  :  its  lawfulness  in  America  is  expressly  asserted 
by  Holt  and  Mansfield  in  the  cases  already  cited.' 

§  215.  It  has  been  shown  that  the  colonial  Governments, 
in  the  exercise  of  any  of  their  powers,  were  also  indirectly  lim- 
ited by  the  national  guarantee  extending  the  rights  and  privi- 

ments  in  the  English  government  at  that  period  ;  absolute  slavery,  if  it  ever  had  ex- 
istence in  England,  having  been  abolished  long  before.  These  instances  sh-w  that 
the  colonists,  in  judging  of  the  applicability  of  the  laws  of  the  mother  country  to  their 
own  situations  and  circumstances,  did  not  confine  themselves  to  very  strict  and  narrow 
limits."     1  Tucker's  Blackstone,  (1803,)  p.  388. 

'  The  English  judges  and  the  American  jurists  were  agreed  upon  this  point ;  they 
disagreed  only  in  deriving  the  law  from  diSerent  sources.  Holt  said — ''  for  the  laws 
of  England  do  not  extend  to  Virginia  ;  being  a  conquered  country,  their  law  is  what 
the  king  pleases."  See  ante,  p.  183  and  note.  The  colonial  governments  ascribed 
the  existence  of  slavery,  in  their  respective  territories,  to  their  own  juridical  action. 


LOCAL  LAW  FOR  SLAVERY.  225 

leges  of  Englishmen'  to  colonists  of  English  or  European  race, 
a  principal  one  of  which  was  certainly  the  right  of  property,  or 
to  its  possession  and  enjoyment.  The  extent  of  the  rights  thus 
guaranteed,  was  unquestionably  determined  by  common  law.' 
But  this  common  law  could  only  be  one  which  had  a  national 
authority  and  recognition,  or  which,  in  operating  as  a  personal 
law,  was  the  same  in  all  parts  of  the  Empire.^  As  has  been 
shown,  if  the  right  of  the  master  in  respect  to  the  slave  had,  in 
the  several  colonies,  a  common  law  character,  or  was  not  de- 
rived from  legislative  enactment,  it  was  not  therefore,  necessa- 
rily, also  a  right  protected  by  common  law  operating  with  na- 
tional extent.*  As  has  been  shown  in  the  preceding  two  chap- 
ters, this  law  during  the  later  part  of  the  colonial  period  at 
least,  if  not  during  the  seventeenth  century  also,  maintained 
slavery  only  in  the  case  of  heathen  Africans  and  Indians  :  and, 
when  Christianized  or  baptized,  their  condition  depended  upon 
the  local  law  of  that  part  of  the  Empire  in  which  they  were 
domiciled. 

§  216,  AUhough  the  involuntary  servitude  of  Indians  and 
negroes  in  the  several  colonies  originated  under  a  law  not  pro- 
mulgated by  legislation,  and  rested  upon  prevalent  views  of 
universal  jurisprudence,  or  the  Imv  of  nations,  supported  by  the 
express  or  implied  authority  of  the  home  Government,  yet  it 
is  evident,  from  the  historical  sketch  of  those  views  which  has 
herein  been  given,  that,  when  negroes  and  Indians  became  the 
permanent  inhabitants  of  the  colonial  jurisdictions,  and  had  be- 
come a  portion  of  a  Christian  population  by  baptism  or  con- 
version, many  doubts  must  have  arisen  in  respect  to  their  legal 
condition.  Being  also  a  condition  entirely  different  from,  and 
in  marked  contrariety  to,  any  known  to  the  personal  law  apply- 

'  Ante,  §  130.  ^ArUe,  §§  137,  138.  ^Ante,  §  136. 

*ATUe,  §  138.  And  it  may  be  mentioned  here,  that  the  claim  of  a  power  in  the 
colonial  Governments  to  prohibit  the  introduction  of  heathen  negro  slaves  from 
abroad,  was  one  of  the  declared  issues  of  the  Revolution.  Walsh's  Appeal,  p.  317,  a*— 
was  declared  by  Mr.  Burke,  in  his  speech  on  the  conciliation  with  America,  and  that 
the  Imperial  refusal  wao  never  justified  on  the  idea  of  securing  to  the  colonists  a  com- 
mon law  right,  but  on  avowed  motives  of  national  policy  and  the  profits  of  British 
merchants.  See  Petition  of  H.  of  Burgesses,  Va.,  April,  1772;  2  Tucker's  Bl.  App. 
p.  52 ;  Jefferson's  first  draft  of  the  declaration  of  Independence ;  preamble  to  Const. 
ofVa.,  June  2G,  1776,  ^os<,-  and  o/jie,  §  203,  n. 

15 


226  THE  OBJECTS  OF  INQUIRY. 

ing  to  the  European  colonist,  slavery  could  not  long  continue 
unnoticed  in  the  local  legislation,  and  enactments  of  very  early 
date  may  be  found  in  all  the  colonies,  some  recognizing,  extend- 
ing and  modifying  the  rights  and  obligations  which  should  ac- 
company its  existence,  and  others  marking  more  distinctly  that 
difference  of  privilege  between  the  inhabitants  of  different 
races,  whether  bond  or  free,  the  origin  of  which  has  been  al- 
ready shown.' 

§  217.  It  is  not  intended  to  present  this  chapter  as  contain- 
ing a  complete  catalogue  or  description  of  the  various  colonial 
enactments  which  might  be  taken  to  create  or  modify  the  oppo- 
site conditions  of  freedom  and  bondage.  A  very  imperfect 
sketch  or  memorandum  only  of  this  legislation  is  here  proposed  ; 
one  which  may  show,  in  part,  the  recognition  of  the  personal 
rights  of  the  free  inhabitants  and  the  legislative  support 'given 
to  the  condition  of  slavery  and  to  the  civil  disabilities  of  per- 
sons of  the  African  and  Indian  races  :  indicating,  in  some  de- 
gree, the  progress  or  decline  of  domestic  slavery,  as  an  element 
in  the  civil  state,  and  the  power  exercised  by  the  colonial  Gov- 
ernments in  varying  those  two  systems  of  personal  law,  the  na- 
ture and  origin  of  which,  as  laws  of  condition  or  status,  have 
been  described.  The  civil  or  social  relations  produced  by  these 
laws,  however  interesting  and  important  in  a  political  and  ethi- 
cal point  of  view,  form  a  subject  of  inquiry  which  is  not  in- 
cluded in  that  view  of  the  law  which  is  taken  in  this  work  ;  and 
the  incidents  of  chattel  slavery  are,  in  their  legal  aspect,  too 
simple  and  well  known  to  require  their  elucidation  in  connection 
■with  the  obvious  bearing  of  the  statutes  themselves.' 

'  Neale  v.  Farmer,  9  Geo.  R.  579 ;  "  It  is  theoretically,  every  where,  and  in  Geor- 
gia, experimentally,  true,  that  two  races  of  men  living  together,  one  in  the  character 
of  master,  and  the  other  in  the  character  of  slave,  cannot  be  governed  by  the  same 
laws." — Not  meaning  that  the  law  which  makes  one  the  master  is  a  diflFerent  law  from 
that  which  makes  another  the  slave  ;  but  that,  where  slavery  exists,  the  actions  of  the 
two  classes  must  be  judged  by  a  diflferent  moral  criterion :  e.  g.  an  act  which,  as  to  a 
freeman,  is  battery  or  murder,  may  not  be  such  as  to  a  slave.  State  v.  Hall,  2 
Hawks'  R.  582.  And  compare  the  provisions  of  Roman  law,  Dig.  lib.  47,  tit.  10,  §  15, 
L  35-39. 

*  The  discrimination,  in  the  following  abstracts,  of  particular  enactments  and 
legislative  expressions  has  been  made  according  to  the  author's  view  of  their  impor- 
tance in  connection  with  the  succeeding  portions  of  this  work.  Other  very  faithful 
descriptions  of  the  colonial  legislation,  having  especial  reference  to  slavery,  may  be 


THE   OBJECTS    OF   INQUIRY.  227 

And,  though  the  location  or  investiture  of  the  sovereign 
political  power  from  which  legislation  may  proceed  is  necessarily 
an  important  element  in  the  quality  of  those  conditions  which 
are  created  by  it,  it  will  not  here  be  attempted  to  describe  the 
oriffin  and  mode  of  existence  either  of  the  several  local  Govern- 
ments,  or  of  the  political  people  of  each  colony,  that  is,  of  that 
portion  of  the  inhabitants  which,  by  the  elective  franchise,  ex- 
ercised the  powers  of  a  body  politic.  These  topics  belong  to 
public  municipal  law  ;  and  the  facts  by  which  that  law  is  mani- 
fested, or  from  which  it  was  derived,  must  be  sought  in  the 
works  of  historical  writers.  The  general  view  of  the  compara- 
tive extent  of  the  powers  held  by  the  colonies,  or  their  organ- 
ized Governments,  for  the  creation  of  local  private  law,  which 
has  been  given  in  the  third  chapter,  may  indicate  the  connec- 
tion of  that  public  law  with  the  subject  of  this  treatise.  An 
account  of  the  creation  of  the  several  colonial  Governments, 
their  political  organization,  territorial  jurisdiction,  and  juridical 
action  is  given,  with  all  essential  minuteness,  in  Story's  Com- 
mentaries, Book  I  ;  and  the  fuller  recital  of  the  same  facts  by 
Mr.  Bancroft,  in  his  History  of  the  United  States,  has  peculiar 
value,  in  this  connection,  from  the  copious  citation  of  the  origi- 
nal authorities  in  the  foot  notes.  To  these  authors  the  reader 
is  particularly  referred.  Since  however  the  possession  by  pri- 
vate persons  of  that  right  which  is  known  as  the  elective  franchise 
is,  in  popular  States,  an  important  characteristic  of  condition,  and 
has  a  peculiar  bearing  on  the  questions  of  status  hereinafter 
considered,  the  personal  extent  of  that  franchise,  at  different 
periods,  will  be  noticed. 

Since  the  colonial  legislation  applying  to  chattel  slaves,  is 
frequently  combined  with  provisions  relating  to  conditions  of 
servitude  in  a  more  general  sense,  including  the  temporary 
bondage  of  persons  under  indenture,  whether  whites  or  negroes 
and  Indians,  the  statutes  respecting  "servants"  and  "servi- 
tude" will  be  cited  with   those  more    strictly  called  "slave 

found  in  Mr.  Hildreth's  History  of  the  United  States,  first  series.  Mr.  Stroud's  sketch 
is  hostile  to  slavery,  but  the  view  of  the  legal  conditions  existing  under  the  customary 
and  statute  Idw  of  the  diflferent  States,  is  indicated  by  extracts  from  many  of  the 
statutes  and  decisions  here  noted. 


228  LAWS    OF    VIRGINIA. 

laws."  Though  detached  portions  of  statutes  cannot  indiN-idu- 
ally  be  supposed  to  give  the  full  meaning  of  the  enactment, 
yet,  taken  together,  they  may  give  a  tolerably  correct  idea  of  the 
course  of  legislation.  For  convenience  in  reference,  the  legislation 
of  each  colony  wiU  be  given  separately  ;  in  an  order  determined 
more  by  the  connection  in  the  legislative  history  of  the  dif- 
ferent jurisdictions,  than  by  the  order  of  the  dates  at  which 
their  several  local  laws,  as  of  distinct  portions  of  the  British 
Empire,  may  be  taken  to  have  originated, — Virginia,  1606  ; 
Maryland,  1632  ;  Massachusetts,  1620  ;  New  Hampshire, 
1679  ;  Connecticut,  1636  ;  Rhode  Island,  1638  ;  New  York 
and  New  Jersey,  1664;  Pennsylvania,  1680;  Delaware,  1691; 
North  Carolina  and  South  Carolina,  1663  ;  Georgia,  1732. 

§218,    Legislation  of  Virginia. 

The  legislation  of  Virginia,  affecting  the  condition  of  the 
Indian  and  negro  races,  constituted,  probably,  a  precedent  for 
that  of  the  neighboring  colonies  and  the  newer  southern  States 
of  the  Union,  and  for  that  reason  a  further  abstract  of  it  is 
here  presented.  Where  other  authority  is  not  mentioned,  the 
citations  are  from  Hening's  edition  of  the  statutes. 

The  recorded  legislation  of  Virginia  commences  with  the 
year  1619,  when  a  legislative  assembly  was  first  convened.'    In 

'  Mr.  Bancroft,  in  the  publication  cited  in  the  text,  quotes  from  a  MS.  in  his  posses- 
sion, entitled  the  "  Briefe  DecLiration,  &c.,"  of  "the  Ancient  Planters,'' saying  that 
from  each  plantation  two  deputies  (Burgesses)  were  elected  "  by  the  Inhabitants 
thereof"  It  does  not  appear  by  what  rule  the  inhabitants  who  should  vote  were  dis- 
criminated. 

The  patent  of  1606  did  not  restrict  the  legislative  power  of  the  governing  coun- 
cils by  any  reference  to  the  laws  of  England.  The  15th  article  provides, — "  also  we 
do  for  us,  our  heirs  and  successors,  declare  by  these  presents,  that  all  and  every  the 
persons,  being  our  subjects,  which  shall  dweU  and  inliabit  within  every  or  any  of  the 
said  several  colonies  and  plantations,  and  every  of  their  children,  which  shall  happen 
to  be  born  within  any  of  the  limits  and  precincts  of  the  said  several  colonies  and  plan- 
tations, shall  have  and  enjoy  all  liberties,  franchises  and  immunities  wilhin  any  of  our 
other  dominions,  to  all  intents  and  purposes  as  if  they  had  been  abiding  and  bom 
within  this,  our  realm  of  England,  or  any  other  of  our  said  dominions." 

1  Hen.  St.  57,  Stith,  app.  L,  p.  1.  The  King's  "Articles,  &c.'' — 1  Hen.  74,  pro- 
vide for  altering  the  ordinances  of  the  local  council — "  so  always  as  the  same  altera- 
tions may  be  such  as  may  stand  with  and  be  in  substance  consonant  to  the  laws  of 
England,  or  the  eqviity  thereof;  "'  and  declare  that  the  ordinances  of  the  crown 
should  be  so  consonant,  and  that  those  of  the  council  in  England  should  be  "  as 
near  to  the  common  laws  of  England  and  the  equity  thereof  as  may  be."  The 
royal  ordinance,  1607 — 1  Hen.  78,  limits  the  local  councils  "so  as  always 
none   of   the    said    acts         *  *       be   contrary   to    the   laws    and    statutes   in 


LAWS    OF    VIRGINIA,  229 

the  proceedings  of  this  assembly,  recently  first  published  by 
Mr.  Bancroft  from  documents  obtained  from  England,  in  New 
York  Hist.  Soc.  Coll.,  2d  series,  vol.  iii.,  there  are  several  en- 
actments respecting  servants  :  p.  346,  that  an  idler  or^  runa- 
gate, though  a  freed  man,  may  be  appointed  to  serve  a  master 
for  wages  :  p.  350,  for  the  punishment  of  a  certain  servant,  for 
ill  conduct  towards  his  master,  by  pillory  and  whipping  :  p. 
352,  servants  forbidden  to  trade  with  Indians  :  p.  355,  for- 
bidding marriage  of  servants  without  consent  of  master  or  a 
magistrate,  and  regulating  time  of  service  in  certain  cases. 
There  are  other  provisions  restricting  the  intercourse  of  the 
colonists  with  the  Indians. 

1630/ — Resolution. — "Hugh  Davis  to  be  soundly  whipped 
before  an  assembly  of  negroes  and  others,  for  abusing  himself 
to  the  dishonor  of  God  and  the  shame  of  Christians,  by  defiling     ,  ^ 
his  body  in  lying  with  a  negro."     1  Hen.  146.  ' 

1640. — "  Kobert  Sweet,  to  do  penance  in  church,  accord- 
ing to  the  laws  of  England,  for  getting  a  negroe  woman  with 
child,  and  the  woman  to  be  whipt." — ■!  Hen.  552. 

1642-3,  c.  21,  22. — Provisions  relating  to  runaway  ser- 
vants and  hired  freemen  :  c.  26,  how  long  servants  brought  over 
without  indentures  shall  serve  :  c.  29,  servitude  for  offences 
abolished  :  c.  40,  forbids  dealing  with  the  servants  or  appren- 
tices of  others.— 1  Hen.  253,  257,  259,  274. 

.this  our  realm  of  England,  or  in  derogation  of  our  prerogative  royal."  The  patent 
of  1609,  to  the  London  Company,  Art.  22,  contains  a  guarantee  similar  to  that  in  Sec. 
15  of  first  patent,  to  "  subjects  which  shall  go  and  inhabit  within  the  said  colony, 
&c.,"  of  the  liberties  of  "free  denizens  and  natural  subjects  within  any  other,  &c." 
The  23d  article  limits  the  legislative  powers  of  the  councils, — "  so  always  as  the  said 
statutes,  ordinances,  and  proceedings,  as  near  as  conveniently  may  be,  be  agreeable 
to  the  laws,  statutes,  government  and  policy  of  our  realm  of  this  England."  (I  Hen. 
96.)  The  patent  of  1611  limits  the  legislative  power,  sec.  7,  to  laws,  "not  contrary 
to  the  laws  and  statutes  of  this  our  realm  of  England."  Sections  14  and  15  are  re- 
markable for  giving  special  powers  to  the  council,  to  seize  and  punish  various  kinds  of 
laborers  for  icages  on  their  desertion. 

Mr.  Bancroft  quotes  from  "Briefe  Declaration,  &c.,  statement  that  in  1619  the 
new  governor.  Sir  Geo.  Yeardley,  under  his  instructions,  given  by  the  Company  in 
England,  proclaimed,  "  that  those  cruell  lawes  by  which  we  had  soe  loiige  been  gov- 
erned, were  now  abrogated,  and  that  we  were  to  be  governed  by  those  free  lawes 
which  his  Majesties  subjectes  live  under  in  Englande." 

'  1  Hild.  208.  "  Orders  were  at  the  same  time  (1633)  sent  to  Virginia  for  a  good 
understanding  between  the  two  colonies,  aod  that  neither  should  entertain  fugitives 
from  the  other." 


230  •  LAWS    OF    VIRGINIA. 

1649,  c.  2. — Declares  all  imported  male  servants  to  be 
tithables, ' 

1654-5,  c.  6. — For  indenturing  Irish  servants.    1  Hen.  411. 

15  55-6,  c.  1. — Indian  children  in  families  of  colomsts,  not 
to  be  slaves.— 1  Hen.  396. 

1657,  c.  85. — Provisions  of  1654-5,  c.  6,  extended  to  all 
alien  servants. — 1  Hen.  471. 

1657-8,  c.  16. — Penalty  for  servants  running  away,  and 
remedy  for  servants  who  may  be  misused  :  c.  18,  courts  to  de- 
termine indenturing  :  c.  46,  What  persons  are  tithable — "  all 
male  servants  hereafter  imported  into  this  colony,  &c.,  liable  to 
pay  country  levies,  and  all  negroes  imported  whether  male  or 
female,  and  Indian  servants  male  or  female,  however  procured, 
being  sixteen  years  of  age,  &c."  (this  act  further  explained  by 
1661-2,  c.  54)  :  c.  48,  transfers  of  the  service  of  Indian  children 
prohibited  :  c.  6Q,  noe  collonic  servants — "  that  no  person  for 
anie  offence  alreadie  committed  shall  be  adjudged  to  serve  the 
coUonie  hereafter." 

1659-60,  c.  13. — Repeals  act  indenturing  aliens  in  service 
(1657,  c.  85,) — "  that  for  the  future,  no  servant  coming  into 
the  country  without  indentures,  of  what  Christian  nation  soever, 
shall  serve  longer  than  those  of  our  owne  country  of  like  age  :  c. 
15,  an  act  for  the  pay  of  Dutch  masters  of  vessels  bringing 
in  runaway  servants  (refers  to  articles  of  peace,  lately  conclu- 
ded with  the  Dutch)  :  c.  16,  encouraging  importation  of  "  negro 
slaves  "  by  "  the  Dutch  and  other  strangers." — 1  Hen.  538, 
539,  540. 

1660. — Upon  refusal  of  the  Indians  of  a  certain  tribe  to 
satisfy  a  certain  award  against  them,  so  many  of  them  as  the 
court  shall  think  fit  shall  be  apprehended  and  sold  into  a 
foreign  country. — 2  Hen.  15. 

'  Titkable's  were  persons  assessed  for  a  poll-tax,  otherwise  called  the  "  country 
levies."  At  first,  only  free  white  pei-sons  were  tithable.  The  law  of  IG-t.'i,  c.  4,  pro- 
vided for  a  tax  on  property  and  titlialile  persons.  By  1648,  c.  6,  property  was  releas- 
ed and  taxes  levied  only  on  the  tithables,  at  a  specified  poll-tax.  Therefore  by  class- 
ing sen-ants  or  slaves  as  tithables,  the  law  attributes  to  them  legal  personality,  or  a 
membei-ship  in  the  social  state,  inconsistent  with  the  condition  of  a  chattel  or  proper- 
ty. That  free  whites  above  the  a^e  of  sixteen  years  were  tithables,  in  this  sense  of 
the  word,  see  Beverley,  p.  218  :  laws  of  16G1— 2,  c.  54 ;  1738,  c.  8,  §  3,  1748,  c.  21^ 


LAWS    OF    VIRGINIA.  231 

1660.  c.  22,  1660-1,  c.  10,  1661-2,  c.  15,  98,  101,  102, 
103,  104,  105. — Various  provisions  for  punishment  of  runaway 
servants,  mostly  by  extending  their  period  of  service  ;  for  pre- 
vention of  cruelty  of  masters,  &c,  :  c.  15,  entitled,  Burial  of 
servants  or  others  privately,  prohibited  :  c.  54,  What  per- 
sons arc  iithablc. — 2  Hen.  118. 

1661-2,0.138 — Concerning  Indians — (margin)  "This  act 
appears  to  be  a  digest  of  the  former  laws  relating  to  the  In- 
dians which  are  very  numerous." — Enacts  "  that  what  English- 
man trader  or  other  shall  bring  in  any  Indians  as  servants,  and 
shall  assigne  them  over  to  any  other,  shall  not  sell  them  for 
slaves,  nor  for  any  longer  time  than  English  of  the  like  ages 
should  serve  by  act  of  assembly." — 2  Hen.  143.  Injuries  done 
them  to  be  remedied  by  the  laws  of  England,  as  if  they  had 
been  done  to  an  Englishman.     See  abstract  in  1  Hildr.  515. 

1661-2. — Reciting  that  a  "Powhatan  Indian  sold  for  life 
time  to  one  E.  S.,  by  the  King  of  Wainoke  Indians,  who  had 
no  power  to  sell  him,  being  of  another  nation,  it  is  ordered  that 
the  said  Indian  be  free,  he  speaking  perfectly  the  English 
tongue  and  desiring  baptism." — 2  Hen.  155. 

1661.  March. — "  The  Committees  report  that  the  great  loss 
and  damage  sustained  by  Mr.  William  Dromond  through  the 
injustice  done  by  the  court  of  Boston  in  New-England  ought 
to  be  repaired,  and  since  the  said  court  have  returned  no  satis- 
factory answer  to  the  letter  of  the  honorable  governor  and 
council  of  Virginia,  wee  are  necessitated  to  find  the  least  of 
ill  expedients  to  repair  the  said  Mr.  Dromond  ;  it  is  therefore 
ordered  by  this  present  grand  assembly,  there  be  seized  to  the 
value  of  fforty  pounds  sterling  money,  out  of  the  estate  of  some 
persons  relateing  to  the  said  government  of  Boston,  which  is  in 
consideration  of  wages  due  for  such  a  servant's  time,  as  was 
illegally  cleared  from  the  said  Dromond's  employ  in  New-Eng- 
land, and  doe  accordingly  order  the  same."     2  Hen.  158. 

1662.  c.  12. — "  Whereas  some  doubts  have  arisen  whether 
children  got  by  any  Englishman  upon  a  negro  woman  f-hould  /• '  ' 
be  slave  or  free.     Be  it,  &c.,  that  all  children  borne  in  this 
country  shall  be  held  bond  or  free,  only  according  to  the  condi- 


232  LAWS   OF    VIRGINIA. 

tion  of  the  mother:"  By  c.  13,  women  servants,  whose  common 
employment  is  working  in  the  ground,  are  made  tithable. 

1663,'  c.  8. — That  runaways  be  pursued  at  the  public  ex- 
pense, "  and  in  case  the  said  fugitives  shall,  notwithstanding 
such  pursuit,  make  an  escape  to  any  of  the  Dutch  j)lantations, 
it  is  enacted  that  letters  be  written  to  the  respective  governors 
of  those  plantations  to  make  seizure  of  all  such  fugitive  ser- 
vants, &c."— 2  Hen.  187. 

1666.  c.  9,  10. — Respecting  servants'  time,  and^nmaways. — 
2  Hen.  239. 

1667.  c,  3. — "  That  the  conferring  of  baptisme  doth  not 
alter  the  condition  of  the  person  as  to  his  bondage  or  ffreedom, 
that  divers  masters,  flreed  from  this  doubt,  may  more  care- 
fully endeavour  the  propagation  of  Christianity,  &c." — 2  Hen. 
260. 

1669.  c.  1.  An  act  about  the  casuall  killing  of  slaves. — 
"  Whereas  the  only  law  in  force  for  the  punishment  of  refrac- 
tory servants  resisting  their  master,  mistress,  or  overseer,  can- 
not be  inflicted  upon  negroes  [slaves  are  here  meant,  because 
the  law  referred  to — 1661-2.  c.  104 — punishes  such  servants  by 
extending  their  time],"  nor  the  obstinacy  of  many  of  them  by 
other  than  violent  means  be  suppressed.  Be  it,  &c.,  if  any  slave 
resist  his  master  (or  other  by  his  master's  order  correcting  him) 
and  by  the  extremity  of  coercion  should  chance  to  die,  that  his 
death  shall  not  be  accounted  felony,  but  the  master  (or  that 
other  person,  &c.)  be  acquitted  from  molestation,  since  it  can- 
not be  presumed  that  prepensed  malice  (which  alone  makes 
murder  felony)  should  induce  any  man  to  destroy  his  own  es- 
tate. 2  Hen.  270.— Re-enacted  1705,  c.  49.  1723.  c.  4.  1748, 
c.  31.     Repealed  1788,  c.  23.  v.  2,  Tucker's  Bla.  app.  46. 

1670.  c.  3.  Election  of  Burgesses  by  who?ne.  "  Whereas  the 
usual  way  of  chuseiug  burgesses  by  the  votes  of  all  persons  who 
haveing  served  their  time  are  ffremen  of  this  country,  &c.  &c., 
and  whereas  the  lawes  of  England  grant  a  voyce  in  such  elec- 
tion, only  souch  as  by  their  estates  real  or  personall  have  inter- 

*  In  this  year  an   insurrection  was  plotted  by  a  number  of  servants.     See  2  Banc. 
192. 


LAWS    OF    VIRGINIA.  233 

est  enough  to  bye  them  to  the  endeavour  of  the  pubUquc 
good," — enacts  that  "  none  but  ffreeholders  and  housekeepers" 
shall  have  votes.     [Comp.  law  1723,  c.  4.] 

c.  5.  "  Whereas  it  has  been  questioned  whether  Indians 

or  negroes,  manumitted  or  othewise  free,  could  be  capable  of 
purchasing  Christian  servants,  it  is  enacted  th^it  no  negro  or 
Indian,  though  baptized  and  enjoying  their  own  freedom,  shall 
be  capable  of  any  such  purchase  of  Christians,  but  yet  not  de- 
barred from  buying  any  of  their  own  nation  :"  c.  12,  "whereas 
some  disputes  have  arisen  whether  Indians  taken  in  war  by  any 
other  nation,  and  by  that  nation  that  taketh  them  sold  to  the 
English,  are  servants  for  life  or  term  of  years,  it  is  resolved  and 
enacted  that  all  servants  not  being  Christians,  imported  into 
this  colony  by  shipping,'  shall  be  slaves  for  their  lives  ;  but 
what  shall  come  by  land  shall  serve,  if  boys  or  girls  until  thirty 
years  of  age,  if  men  or  women,  twelve  years  and  no  longer." 
2  Hen.  280,  283.  1670,  ap.  20— extract  from  the  records  of  the 
general  court,  2  Hen.  509,  Hist.  Doc.  margin — "  Convicts 
(called  '  jail  birds')  from  the  prisons  in  England,  not  permitted 
to  be  landed  in  Virginia." 

1671.  c.  7.  "That  any  strangers  desiring  to  make  this 
country  the  place  of  their  constant  residence,  may  upon  their 
petition  to,  &c.,  and  taking  the  oaths  &c.  to  his  majesty,  be  per- 
mitted to  a  naturalization,  &c.  *  *  Provided  that  the  benefit 
of  such  naturalization  be  confined  and  esteemed  to  extend  only 
to  the  government  of  Virginia,  beyond  which  this  grand  assem- 
bly pretend  to  noe  authority  of  warranting  its  sufficiencie,  &c." 
2  Hen.  289. 

1676.  c.  1.  {Of  Laws  under  Bacon' s  usurpation.)  An  act 
for  cai'rying  on  loarre  against  the  barbarous  Indians — "  That 
all  Indians  taken  in  warre  be  held  and  accounted  slaves  dureing 
life."  2  Hen.  346. 

'  Shipping  seems  to  refer  to  negroes ;  but  it  is  supposed  that  about  this  time  Indians 
were  imported  into  New  England  and  Virginia,  as  slaves,  from  the  West  Indies  and  the 
Spanish  Main.  1  Hildreth  Hist.  522. 

Hist.  Documents,  1670,  2  Hen.  51.5. — Enquiries  to  the  Governor  of  Virginia, 
submitted  by  the  Lords  Commissioners,  &c.  By  answers  to  questions  15  and  16,  it 
appears  that  of  40,000  persons,  there  were  2,000  '^  black  slaves,  600  Christian  servants, 
and  that  the  yearly  immigration  of  servants  was  about  1,500,  of  which  most  are  English, 
few  S(jptch,  and  fewer  Irish,  and  not  above  two  or  three  ships  of  negroes  in  seven  years." 


234  LAWS    OF    VIRGINIA. 

1676 — 7.  'Order  that  Indian  captives  taken  by  soldiers  in 
war  should  be  the  property  of  such  captors.  2  Hen.  404 — and 
note  and   1679,  c.  1;  to  the  same  effect  2  Hen.  432,  440. 

1680.  c.  2.  An  act  for  naturalization  by  Governor,  &c. 
c.  7,  A  n  act  ascertaining  the  time  when  negroe  cJdldren  shall  he 
tythahle.  c.  S,  An  act  ly  censing  a  free  trade  with  the  friendly 
Indians,  c.  10,  An  act  for  preventing  negroes  insurrections. 
"  Whereas  the  frequent  meeting  of  considerable  numbers  of  ne- 
groe slaves  under  pretence  of  feasts  and  burialls  is  judged  of 
dangerous  consequence," — enacts  that  no  negro  or  other  slave 
shall  carry  arms  or  go  from  plantation  without  certificate,  and 
if  such  "  shall  presume  to  lift  up  his  hand  in  opposition  against 
any  Christian,"  shall  be  punished  with  thirty  lashes.  (See  L 
1748,  c.  38,  §  20.)  "  That  if  any  negro  or  other  slave  shall 
absent  himself  from  his  master's  service  and  lye  hid  and  lurk- 
ing in  obscure  places,  committing  injuries  to  the  inhabitants, 
and  shall  resist  any  person  or  persons  that  shall  by  lawful  au- 
thority be  employed  to  apprehend  and  take  the  said  negroe,  that 
then,  in  case  of  such  resistance,  it  shall  be  lawful  for  such  per- 
son or  persons  to  kill  the  said  negroe  or  slave  soe  lying  out  and 
resisting,  &c.  2  Hen. 464, 480, 481,  (continued,l705,  c  .49,  sec.  37.) 

1682,  c.  1. — An  act  to  repeole  a  former  law  maldng  Indians 
and  others  ffree. — 2  Hen.  490.  Preamble,  after  reciting  act  of 
1670,  c.  12,  "  and  for  as  much  as  many  negroes,  moores,  mol- 
latoes,  and  others,  borne  of  and  in  heathenish,  idoUatrous,  pa- 
gan, and  Mahometan  parentage  and  country,  have  heretofore 
and  hereafter  may  be  purchased,  procured,  or  otherwise  ob- 
teigned,  as  slaves,  of,  from,  or  out  of  such  their  heathenish 
country,  by  some  well-disposed  Christian,  who,  after  such  their 
obteining  and  purchasing  such  negroe,  moor,  or  molatto  as  their 
slave,  out  of  a  pious  zeale  have  wrought  the  conversion  of  such 
slave  to  the  Christian  faith,  which  by  the  laws  of  this  country 
doth  not  manumit  them  or  make  them  free,  and  afterwards  such 
their  conversion,  it  hath  and   may  often  happen   that    such 

'  The  third  charter,  so  called,  of  Virginia  is  dated  October  10,  1G7G.  The  most 
important  clause  in  connection  with  the  subject  is — "  declare  and  grant  that  all  the 
subjects  of  us,  our  heirs  and  successors  from  time  to  time  inhabiting  within  our  colony 
and  plantation  of  Virginia,  shall  have  their  immediate  dependence  upon  the  Crown  of 
England,  under  the  i-ule,  &c.     2  Hen.  532.  • 


LAWS   OF    VIRGINIA.  235 

master  or  owner  of  such  slave  being  by  some  reason  inforced  to 
bring  or  send  such  slave  into  this  country  to  sell  or  disijose  of 
for  his  necessity  or  advantage,  he,  the  said  master  or  owner  of 
such  servant,  which,  notwithstanding  his  conversion,  is  really 
his  slave,  or  his  factor  or  agent  must  be  constrained  either  to 
carry  back  or  export  againe  the  said  slave  to  some  other  place 
where  they  may  sell  him  for  a  slave  or  else  depart  from  their 
just  right  and  tytle  to  such  slave,  and  sell  him  here  for  noe 
longer  time  than  the  English  or  other  Christians  are  to  serve, 
to  the  great  losse  and  damage  of  such  master  or  owner,  and  to 
the  great  discouragement  of  bringing  in  such  slaves  for  the  fu- 
ture, and  to  noe  advantage  at  all  to  the  planter  or  buyer  ;  and 
whereas  alsoe  those  Indians  that  are  taken  in  warre  or  other- 
wise by  our  neighbouring  Indians,  confederates  or  tributaries  to 
his  majestic  and  this  his  plantation  of  Virginia,  are  slaves  to  the 
said  neighbouring  Indians  that  soe  take  them,  and  by  them  are 
likewise  sold  to  his  majesties  subjects  here,  as  slaves.  Bee  it 
therefore  enacted  by  the  governour,  councell,  and  burgesses  of 
this  general  assembly,  and  it  is  enacted  by  the  authority  afore- 
said, that  all  the  said  recited  act  of  the  third  of  October,  1670, 
be  and  is  hereby  repealed  and  made  utterly  voyd  to  all  intents 
and  purposes  whatsoever.  And  be  it  further  enacted  by  the 
authority  aforesaid,  that  all  servants  except  Turkes  and  Moores, 
whilst  in  amity  with  his  majesty,  which  from  and  after  publica- 
tion of  tliis  act  shall  be  brought  or  imported  into  this  country 
either  by  sea  or  land,  whether  negroes,  Moors,  mollatoes  or  In- 
dians, who  and  whose  parentage  and  native  country  are  not 
Christian  at  the  time  of  their  first  purchase  of  such  servant  by 
some  Christian,  though  afterwards  and  before  such  their  im- 
portation and  bringing  into  this  country,  they  shall  be  converted 
to  the  Christian  faith  ;  and  all  Indians  which  shall  hereafter  be 
sold  by  our  neighbouring  Indians,  or  any  other  trafiqueing  with 
us,  as  for  slaves,  are  hereby  adjudged,  deemed,  and  taken,  and 
shall  be  adjudged,  deemed,  and  taken  to  be  slaves,  to  all  intents 
and  purposes,  any  law,  usage,  or  custome  to  the  contrary  not- 
withstanding," This  provision,  re-enacted  in  nearly  the  same 
terms  in  the  revisions  of  1705.  c.  49,  §4.  1753,  c.  2. 


236  LAWS   OF    VIRGINIA. 

1682,  c.  2. — An  act  declaring  Indian  women  servants  tith- 
ables. — Whereas  it  hath  been  doubted  wliether  Indian  women 
servants  sold  to  the  English  above  the  age  of  sixteene  yeares  be 
tjthable.  Be  it,  &c.,  that  all  Indian  women  are  and  shall  be 
tythables,  and  ought  to  pay  levies  in  like  manner  as  negroe 
women  brought  into  this  country  doe  and  ought  to  pay. 

1682,  c.  3. — An  additional  act  for  tJie  better  preventing  in- 
surrections by  negroes. — 2  Hen.  490,  492. 

1684,  c.  3. — "  An  act  repealing  act  concerning  the  pursuit 
of  runawayes"  (1663,  c.  8),  because  found  ''  by  experience  to 
be  inconveniente." — 3  Hen.  12. 

1691,  c.  9. — An  act  for  a  free  trade  with  Indians. — (He- 
ning's  note.) — "  This  act  was  re-enacted  in  the  revisal  of  1705, 
and  again  in  the  edition  of  1*733,  in  which  last  it  forms  sect.  12, 
of  ch.  52.  This  is  the  same  law  on  which  the  old  general  court 
first  founded  their  decision,  that  the  right  of  making  slaves  of 
Indians  was  taken  away  ;  though  at  that  time  it  had  not  been 
discovered  that  the  act  existed  as  far  back  as  1691.  The  Su- 
preme Court  of  Appeals  have  since  extended  the  principle  to 
cases  where  Indians  were  brought  in  between  1691  and  1705.' 
c.  16. — An  act  for  suppressing  outlying  slaves. — That  such 
slaves  shaU  be  arrested  by  the  sheriff  or  a  justice's  warrant  ; 
that  in  case  of  resistance,  &c.,  "  in  such  cases  it  shall  and  may 
be  lawfuU  for  such  person  or  persons  to  kill  and  distroy  such 
negroes,  mulattoes,  and  other  slave  or  slaves  by  gunn  or  any 
otherwaise  whatsoever."  Compensation  to  be  made  to  master 
in  such  case.  "  And  for  prevention  of  that  abominable  mixture 
and  spurious  issue,  which  hereafter  may  encrease  in  this  do- 
minion, as  well  by  negroes,  mulattoes,  and  Indians  intermar- 
rying with  English  or  other  white  women,  as  by  their  unlawful 
accomlpanying  with  one  another.  Be  it,  &c.,  That  for  the  time 
to  come  whatsoever  English  or  other  white  man  or  woman  being 
free  shall  intermarry  with  a  negroe,  mulatto,  or  Indian  man  or 
woman,  bond  or  free,  shall  within  three  months  after  such  mar- 

'  See  Hudgins  v.  Wrighte,  1  Hen.  and  Munford's  R.  p.  139;  Pallas  and  oth.  r. 
Hill  and  oth.  2  do.  p.  149  ;  Butt  v.  Rachel,  4  Munford's  R.  p.  209  ;  also,  1  Hen.  Stat. 
Pref.  vi. 


^:. 


LAWS    OF    VIRGINIA.  237 

riage  be  banishetl  and  removed  from  this  dominion  for  ever,  and 
that  the  justices  of  each  respective  countie  within  this  do- 
minion make  it  their  particular  care  that  this  act  be  put  in  ef- 
fectual execution."  Other  provisions  are  :  white  women  having 
a  bastard  by  a  negro  or  mulatto,  to  pay  £15  sterling,  in  defliult 
of  payment  to  be  sold  for  five  years,  such  bastard  to  be  bound 
by  church  wardens  till  thirty  years  of  age.  Servant  women  of- 
fending, to  be  likewise  sold  after  the  expiration  of  their  term  of 
service.  "  And  for  as  much  as  great  inconveniences  may  happen 
to  this  country  by  the  setting  of  negroes  and  mulattoes  free,  by 
their  either  entertaining  negro  slaves  from  their  master's  service, 
or  receiving  stolen  goods,  or  being  grown  old  bringing  a  charge 
upon  the  country ;  for  prevention  thereof.  Be  it,  <&c.,  That  no  negro 
or  mulatto  be,  after  the  end  of  this  present  session  of  assembly, 
set  free  by  any  person  or  persons  whatsoever,  unless  such  person 
or  persons,  their  heirs,  executors,  or  administrators  pay  for  the 
transportation  of  such  negro  or  negroes  out  of  the  country  within 
six  months  after  such  setting  them  free,  upon  penalty  of  paying 
ten  pounds  sterling  to  the  church  wardens  of  the  parish  where 
such  person  shall  dwell,  with  which  money  or  so  much  thereof 
as  shall  be  necessary,  the  said  church  wardens  are  to  cause  the 
said  negro  or  mulatto  to  be  transported  out  of  the  country,  &c. 

1692,  c.  3. — An  act  for  the  more  speedy  prosecution  of  slaves 
committing  capital  crimes. — ("  This  is  tlie^rs^  law  constituting 
a  tribunal  expressly  for  the  trial  of  slaves." — Marg.  note.) 
Whereas  a  speedy  prosecution  of  negroes  and  other  slaves  for 
capital  offences  is  absolutely  necessarie,  that  others  being  detered 
by  the  condign  punishment  inflicted  on  such  offenders  may  vig- 
orously proceed  in  their  labours  and  be  affrighted  to  commit  the 
like  crimes  and  offences  ;  and  whereas  such  prosecution  has  been 
hitherto  obstructed  by  reason  of  the  charge  and  delay  attending 
the  same ;  Be  it,  &c."  Slave  committing  a  capital  offence  to 
be  committed  to  the  jail  of  the  county  ;  sheriff  to  give  notice  to 
the  governor,  "  who  is  desired  and  impowered  to  issue  out  a  com- 
mission of  oyer  and  terminer  directed  to  such  persons  of  the 
said  county  as  he  shall  think  fitt,  which  persons  forthwith  after 
the  receipt  of  the  said  commission  are  required  and  commanded 


238  LAWS    OF    VIRGINIA. 

publicly  at  the  court  house  of  the  said  county  to  cause  the  of- 
fender to  be  arraigned  and  indicted,  and  to  take  for  evidence 
the  confession  of  the  party,  or  the  oaths  of  two  witnesses,  or  of 
one  with  pregnant  circumstances,  without  the  solemnitie  of  jury, 
and  the  offender  being  found  guilty  as  aforesaid,  to  pass  judg- 
ment as  the  law  of  England  provides  in  the  like  case  and  on 
such  judgment  to  award  execution."     See  1705,  c.  11. 

1699,  c.  12. — An  act  for  laying  an  imposition  upon  servants 
and  slaves  imported  into  this  country,  dtc. — 3  Hen.  193.  For  a 
history  of  the  legislation  of  Virginia  iinposing  duties  on  imported 
slaves,  and  titles  of  twenty-three  several  statutes  from  this  date 
to  1772,  see  2  Tucker's  Bl.,  App.  49. 

1705,  c.  2. — An  act  regulating  elections,  &c. — 3  Hen.  236, 
Sec.  3  enacts  that  "every  freeholder"  shall  appear  and  vote 
under  a  penalty.  4.  Excepts  from  the  obligation  and  right  any 
freeholder  "  being  a  feme-sole  or  feme-covert,  in  fact,  under  age, 
or  recusant  convict.  6.  "  Every  person  who  hath  an  estate,  &c., 
shall  be  accounted  a  freeholder," 

1705,  c.  4. — An  act  declaring  who  shall  not  hear  office  in 
this  country. — 3  Hen.  250.  "  That  no  person  whatsoever  al- 
ready convicted,  or  which  shall  hereafter  be  convicted,  &c.,  of 
treason,  murther,  felony,  &c.,  &c.,  nor  any  negro,  mulatto,  or 
Indian,  shall  from  and  after  the  publication  of  this  act  bear  any 
office  ecclesiasticall,  civill,  or  military,  or  be  in  any  place  of 
public  trust  or  power,  within  tliis  her  majesty's  colony  and  do- 
minion of  Virginia,  and  that  if  any  person  convicted  as  aforesaid, 
or  negro,  mulatto,  or  Indian  shall  presume  to  take  upon  him, 
&c.,"  and  for  clearing  all  manner  of  doubts  which  hereafter  may 
happen  to  arise  upon  the  construction  of  this  act,  or  any  other 
act,  who  shall  be  accounted  a  mulatto.  Be  it,  &c..  That  the 
child  of  an  Indian,  and  the  child,  grandchild,  or  great  grandcliild 
of  a  negro  shall  be  deemed,  accounted,  held,  and  taken  to  be  a 
mulatto."  No  provision  against  their  voting,  c.  7,  3  Hen.  258, 
re-enacts  the  law  of  1661-2,  c.  54,  respecting  tithables. 

c.  11.  An  act  for  the  speedy  and  easy  prosecution  of 

slaves  committing  capitall  crimes. — 3  Hen.  269.  Similar  to  the 
act  of  1692,  c.  3,  but  compensates  the  owner  upon  the  conviction 


LAWS   OF    VIRGINIA.  239 

of  the  slave.     c.  12.  "  An  act  to  prevent  the  clandestine 

transportation  or  carrying  of  persons  in  debt,  servants  and  slaves, 
out  of  this  colony."— 3  Hen.  270. 

c.  19. — An  act  for  establishing  the  general  court,  &c 

In  §  31,  "  That  Popish  recusants,  convict  negroes,  mulattoes, 
and  Indian  servants  and  others,  not  being  Christians,  shall  be 
deemed  and  taken  to  be  persons  incapable  in  law  to  be  witnesses 
in  any  cases  whatsoever." 

■■  c.  23. — An  act  declaring  the  negro,  mulatto,  and  Indian 
slaves  loithin  this  dominion  to  he  real  estate. — 3  Hen.  333,  sec,  1. 
The  words  are,  "  to  be  real  estate  (and  not  chattels)."  This 
affected  slave  property  only  under  the  laws  of  descent  and  de- 
vise, judgments,  executions,  &c.  See  Chinn  v.  Respass,  1  Mun- 
roe's  R.  28. 

c.  45. — A71  act  for  naturalization. — 3  Hen.  434,  sec.  1. 

Aliens  may  be  naturalized  by  "  the  governor  or  commander-in- 
chief  of  this  colony  and  dominion."  Sec.  7  "  Pro'sdded  that 
nothing  in  this  act  contained  shall  be  construed  to  enable  or 
give  power  or  privilege  to  any  foreigner  to  do  or  execute  any 
matter  or  thing,  which  by  any  of  the  acts  made  in  England 
concerning  her  majesty's  plantations  he  is  disabled  to  do  or  exe- 
cute." 

0.  48. — An  act  concerning  marriages. — 3  Hen,  441. 

§  6.  Servants  not  to  marry  without  consent,  &c.    Penalties. 

c.  49. — An  act  concerning  servants  and  slaves,  3  Hen. 

447,  sec.  1. — How  long  servants  without  indenture,  being  Chris- 
tains|or  of  Christian  parentage,  shall  serve.  2.  The  age  to^be  ad- 
judged by  the  court.  3.  When  to  produce  their  indentures, 
4,  Who  shall  be  slaves  (similar  to  1682,  c  1),  5.  Penalty  for 
importing  and  selling  free  persons  as  slaves.  6.  "  Provided  al- 
ways that  a  slave's  being  in  England,  shaU  not  be  sufficient  to 
discharge  him  of  his  slavery,  without  other  proof  of  his  being 
manumitted  there."  7.  Duty  of  masters  to.  servants,  restriction 
as  to  correction.  8.  Complaints  of  servants,  how  redressed.  9. 
Sick  and  disabled  servants,  how  provided  for.  10.  Servants' 
wages,  how  recovered.  11.  And  for  a  further  Christian  care  and 
usage  of  aU  Christian  servants.     Be  it,  &c.,  that  no  negroes,  mu- 


240  LAWS    OF    VIRGINIA, 

lattos  or  Indians,  althougli  Christians,  Jews,  or  Moors,  Mahomet- 
ans, or  other  infidels,  shall,  at  any  time,  purchase  any  Christian 
servant  nor  any  other,  except  of  their  own  complexion,  or  such  as 
are  declared  slaves  by  this  act ;  and  if  any  negro,  mulatto  or  In- 
dian, Jew,  Moor,  Mahometan,  or  other  infidel,  or  such  as  are  de- 
clared slaves  by  this  act,  shall,  notwithstanding,  purchase  any 
Christian  white  servant,  the  said  servant  shall,  ipso  facto,  become 
free  and  acquit  from  any  service  then  due,  and  shall  be  so  held, 
deemed,  and  taken.  And  if  any  person,  having  such  Christian  ser- 
vant, shall  intermarry  with  any  such  negro,  mulatto,  or  Indian, 
Jew,  Moor,  Mahometan,  or  other  infidel,  every  Christian  white  ser- 
vant of  every  such  person  so  intermarrying,  shall,  ij^so  facto, 
become  free  and  acquit  from  any  service  then  due  to  such  mas- 
ter or  mistress  so  intermarrying,  as  aforesaid,"  12,  "  Contracts 
of  masters  with  their  servants  void,  unless  approved  in  court." 
13,  Provides  freedom  dues  at  expiration  of  indentures  of  ser- 
vants, 14.  Penalty  on  servants  resisting  their  masters,  15, 
Penalty  for  dealing  with  servants  or  slaves,  without  leave  of 
their  owners,  16,  Punishment  by  stripes  for  so  doing.  17. 
Servants  may  be  whipped  in  lieu  of  fines,  for  a  breach  of  penal 
laws,  18,  Women  servants  having  bastards,  to  serve  longer 
than  a  year,  19.  "  And  for  a  further  prevention  of  that  abomi- 
nable mixture  and  spurious  issue,  which  may  hereafter  increase 
in  this,  her  majesty's  colony  and  dominion,  as  well  by  English 
and  other  white  men  and  women  intermarrj'ing  wdth  negroes  or 
mulattos,  as  by  their  unlawful  coition  with  them.  Be  it,  &c. 
That  whatsoever  English  or  other  white  man  or  woman,  being 
fi-ee,  shaD  intermarry  with  a  negro  or  mulatto  man  or  woman, 
bond  or  free,  ^hall,  by  judgment  of  the  county  court,  be  com- 
mitted to  prison,  and  there  remain  during  the  space  of  six 
months,  without  bail  or  mainprise  ;  and  shall  forfeit  and  pay 
ten  pounds,  &c.  20.  Penalty  on  ministers  marrying  them.  21. 
Freedom  of  servants  to  be  recorded.  Penalty  for  entertaining 
them  without  certificate,  Kemainder  contains  various  police 
regulations  relating  to  slaves.     Sec.  36  is  as  follows  : — 

"  And  also  it  is  hereby  enacted  and  declared,  that  baptism 
of  slaves  doth  not  exempt  them  from  bondage  ;  and  that  aH 


LAWS    OF    VIRGINIA.  241 

childreu  shall  be  bond,  or  free,   according  to  the  condition  of 
their  mothers,  and  the  particular  directions  of  this  act." 

Sec.  37,  provides  for  the  apprehension  of  outlying  slaves, 
that  they  may  be  killed  if  resisting  (as  in  1680,  c.  10),  disor- 
derly slaves  when  may  be  dismembered  on  order  of  court. 
Sec.|38.  Value  of  slaves  killed  according  to  the  act  to  be  paid  to  the 
owner  :  41  repeals  all  previous  acts  relating  to  servants  and  slaves. 

c.  52.  A71  act  for  pi-evention  of  misunderstandings  be- 
tween the  tributary  Indians  and  other  of  her  majesty's  subjects  of 
this  colony  and  dominion,  and  for  a  free  and  open  trade  ivith 
all  Indians  whatsoever.  (See  1691,  c.  9.  1753,  c.  2.  II., 
Tucker's  Bl.  Ap.  47,  n.)     3  Hen.  464. 

1711,  c.  1. — An  act  for  appointing  Bangers.  4  Hen.  10. 
"  That  if  any  Indian  or  Indians  so  taken  shall  upon  examina- 
tion or  tryal  be  found  to  belong  to  any  of  the  nations  in  warr 
with  this  government,  such  Indian  and  Indians  shall  be  trans- 
ported and  sold,  and  the  benefit  of  said  sale  shall  entirely  be- 
long to  that  2)arty  of  rangers  by  which  they  were  apprehended." 

1723,  c.  3. — Another  act  relating  to  Indians.  Indians  of- 
fending against  the  terms  of  certain  treaties,  "  to  suffer  death  of 
be  transported  to  the  West  Indies,  there  to  be  sold  as  slaves  as 
shall  be  awarded  by  the  courts,  &c."     4  Hen.  103. 

1723,  c.  2. — An  act  for  the  better  settling  and  regulation  of 
the  militia.  Sec.  6,  7  provides, — Free  negroes,  mulattos,  or 
Indians  may  be  listed  and  emploied  as  drummers  or  trumpeters 
in  servile  labor,  but  are  not  to  bear  arms.  c.  4.  An  act  direct- 
ing the  trial  of  slaves  committing  capital  crimes,  and  for  the 
more  effectual  punishing  conspiracies  and  insurrections  of  them, 
and  for  the  better  government  of  negroes,  midattos  and  Indians, 
bond  or  free.  Sec.  1  relates  to  the  punishment  of  plots,  &c. 
3  provides  for  proceedings  against  slaves  committing  capital 
crimes,  similar  to  1705,  c.  11,  and  1692,  c.  3,  with  the  excep- 
tion of  the  allowance  in  such  cases  of  "  the  testimony  of  negros, 
mulattos  or  Indians,  bond  or  free,  with  frequent  circumstances 
as  shall  to  them  (the  justices)  seem  convincing,"  &c.  17. 
"  That  no  negro,  mulatto,  or  Indian  slaves  shall  be  set  free 
upon  any  pretence  whatsoever,  except  for  some  meritorious 
16 


242  LAWS    OF    VIRGINIA. 

services,  to  be  adjudged  and  allowed  by  the  governor  and  coun- 
cil, &c."  18.  Dismembering  of  slaves  (explains  1705,  c.  49, 
s.  37,)  provided  for.  19.  Death  of  slave  under  dismember- 
ment, not  punishable,  if  not  intended  ;  "  neither  shall  any  per- 
son whatsoever  who  shall  be  indicted  for  the  murder  of  any 
slave,  and  upon  trial  shall  be  found  guilty  only  of  manslaugh- 
ter, incur  any  forfeiture  or  punishment  for  such  offence  or  mis- 
fortune." (Repealed  1788,  c.  23,  see  2  Tucker's  Bl.  App.  56.) 
21.  All  free  negroes,  &c.  (except  tributary  Indians),  above 
sixteen  years  of  age,  and  their  wives  declared  tithable.  22. 
Children  of  mulatto  or  Indian  women,  bound  to  serve  for  years, 
how  long  to  serve.  23.  "  That  no  free  negro,  mulatto  or  In- 
dian, whatsoever,  shall  hereafter  have  any  vote  at  the  election  of 
burgesses,  or  any  other  election  whatsoever."  (See  1785,  c.  55  ; 
1794,  c.  17.)     4  Hen.  119,  126.' 

1726,  c.  4. — An  act  for  amending  an  act  concerning  ser- 
vants and  slaves,  and  for  the  further  preventing  the  clandestine 
transportation  of  persons  out  of  this  colony,  mostly  regards  the 
exportation  of  runaway  slaves,  whose  owners  cannot  be  discov- 
ered.    4  Hen.  168. 

1727,  c.  11. — Anactto  explain  and  amend  the  act  for  declar- 
ing slaves  to  hereal  estate.  §  3.  "  Slaves  to  pass  as  chattels"  (mar- 
gin) may  be  conveyed  as  such  by  will,  by  deed  of  gift  or  of  sale. 

1732,  c.  7.  An  act  for  settling  some  doubts,  &c.,  sec.  5. 
"  And  whereas  negroes,  mulattos,  and  Indians,  have  lately  been 
frequently  ^allowed  to  give  testimony  as  lawful  witnesses  in  the 
general  court  and  other  courts  of  this  colony,  when  they  have 
professed  themselves  to  be  Christians,  and  been  able  to  give  some 
account  of  the  principles  of  the  Christian  religion  ;  but  foras- 
much as  they  are  people  of  such  base  and  corrupt  natures  that 
the  credit  of  their  testimony  cannot  be  certainly  depended  upon, 
and  some  juries  have  altogether  rejected  their  evidence  and  oth- 
ers have  given  full  credit  thereto  " — enacts  that  negroes,,  mulat- 
tos, and  Indians,  whether  slaves  or  free,  shall  be  disabled  to  be  wit- 
nesses, except  on  the  trial  of  a  slave  for  a  capital  offence,  and  refers 

'  See  2  Chalmers'  Opinions,  p.  113.  Opinion  of  West  against  the  propriety  of  sanc- 
tioning this  section  of  this  act,  on  the  ground  that  no  distinction  should  be  made  between 
free  persons,  in  respect  to  color. 


LAWS    OF    VIRGINIA.  243 

to  1723,  c.  4,  how  Buch  testimony   shall   be   taken. — 4  Hen. 
325. 

1734,  c.  8.  An  act  for  alloiving  Indians  to  he  witnesses  in 
criminal  offences  committed  by  Indians. — 4  Hen.  405. 

1744,  c.  13.  An  act  to  amend,  dc,  sec.  2,  provides  that 
"  any  free  negro,  mulatto,  or  Indian,  being  a  Christian,  shall  be 
admitted  in  any  court  of  this  colony,  or  before  any  justice  of  the 
peace,  to  be  sworn  as  a  witness,  and  give  evidence  for  or  against 
any  other  negro,  mulatto,  or  Indian,  whether  slave  or  free,  in  aU 
causes  whatsoever,  as  well  civil  as  criminal,  any  law,  custom  or 
usage  to  the  contrary  in  any  wise  notwithstanding. — 5  Hen.  244. 

1748,  c.  2.  An  act  declaring  slaves  to  he  personal  estate, 
and  for  other  purposes  therein  mentioned.  This  act,  with  oth- 
ers of  this  session,  having  been  repealed  by  the  king,  representa- 
tion was  made  against  the  repeal,  assigning  reasons,  see  5  Hen. 
432-443.' 

1748,  c.  14,  a  revision  of  laws  under  an  act  of  1745,  see  1 
Hen.  pref  vi.  An  act  concerning  servants  and  slaves.  Ke- 
enacts  most  of  previous  laws  on  this  subject.  Sec.  1.  How  long 
servants  imported  without  indentures  shall  serve.  2.  What 
persons  imported  shall  be  slaves, — same  rule  as  in  1705,  c.  49, 
s.  4.,  and  in  1682,  c.  1,  s.  3.  A  penalty  for  importing  and  selling 
a  free  person  as  a  slave.  4.  "  That  a  slave's  being  in  England 
shall  not  be  a  discharge  from  slavery,  without  proof  of  being 
manumitted  there  ;  and  that  baptism  of  slaves  doth  not  exempt 
them  from  bondage  ;  and  that  all  children  shall  be  bond  or  free 
according  to  the  condition  of  their  mothers,  and  the  particular 
directions  of  this  act."  5.  Masters'  duty  to  servants, — "  that 
they  shall  not  give  immoderate  correction,, nor  whip  a  Christian 
white  servant  naked  without  an  order  from  a  justice  of  the 
peace,"  &c.  6.  Justices  to  receive  servants'  complaints,  pro- 
ceeding thereon.  7.  No  contracts  between  masters  and  ser- 
vants  unless  in  court — servants  shall  have  the  property  of  their 
own  effects — sick  or  lame  servants  may  not  be  discharged.  8. 
Servants  shall  have  their  freedom  dues.  9.  Same  as  1705,  c. 
49,  8.  11.       10.   Penalty  for  dealing  with  servants  or  slaves. 

'  This  statute  did  not  change  the  law.     Slaves  were  real  estate,  in  1777.     See 
Chinn  v.  Respass,  1  Munroe's  R.,  27. 


244  LAWS    OF    VIRGINIA. 

11.  Duty  of  servants  ;  their  punishment  in  case  of  resistance. 

12.  Punishment  by  whipping  in  lieu  of  fine.  13.  Servants 
when  free  to  have  a  certificate.  14-22.  Respecting  runaway 
servants.  Sec.  19,  provides  that  runaways  belonging  to  inhab- 
itants of  Maryland  and  Carolina  may  be  detained  until  claimed 
by  their  owners.  23,  24.  Eespecting  servants  contracting  to 
serve  by  the  year,  and  apprentices.  25.  Stealing  made  a 
felony  -without  clergy. 

c.  22.  An  act  to  prevent  the  clandestine  transportation  or 

carrying  of  persons  in  debt,  servants  or  slaves,  out  of  this  colony. 

c.  38.  An  act  directing  the  trial  of  slaves  committing 

capital  crimes,  and  for  the  more  effectual  punishing  conspiracies 
and  insurrections  of  them,  and  for  the  better  government  of  ne- 
groes, mulattoes,  and  Indians,  bond  or  free.  §  1-10.  Punish- 
ment for  certain  crimes,  like  1723,  c.  4.  11.  Excludes  the 
testimony  of  negroes,  &c.,  slave  or  free,  except  on  trial  of  slaves 
for  capital  oficnces.  12.  Admits  testimony  of  free  negro,  &c., 
being  a  Christian,  against  or  between  other  negroes,  &c. 
13-16.  Of  unlawful  meetings  of  slaves.  17.  Punishment  of 
slaves  for  being  found  abroad  without  leave.  18,  19.  Arms 
and  ammunition  not  allowed  to  negroes,  &c.,  except  those  on 
the  frontier,  having  a  license.  20.  Negro  lifting  his  hand 
against  a  wliite  person  shall  receive  thirty  lashes.  21.  Against 
outlying  slaves.  22.  Their  value,  if  killed  in  the  attempt  to 
seize  them  as  such,  to  be  paid  by  the  public.  23,  24,  25.  Re- 
specting homicide  of  slaves,  dismembering  of  disorderly  slaves, 
as  in  1723,  c.  4,  s.  18,  19.  26.  Slaves  freed  without  legal  li- 
cense may  be  sold  by  the  churchwardens. — 5  Hen.  432,  547  ;  6 
Hen.  40,  104. 

1753,  c.  7.  An  act  for  the  better  government  of  servants  and 
slaves.  Most  of  the  acts  of  1748,  having  been  repealed  by  the 
king,  1752,  this  is  substantially  a  re-enactment  of  1748,  c.  14, 
which  had  been  so  repealed — see  6  Hen.  215. 

1757,  c.  3.  Respecting  the  militia,  as  to  enlisted  free  negroes, 
the  same  as  in  1723,  c.  2.— 17  Hen.  93. 

1765,  c.  24.  An  act  to  prevent  the  practice  of  selling  per- 
sons as  slaves  that  are  not  so,  &c. — 8  Hen.  133. 


LAWS   OF    VIRGINIA,  245 

c.  25.  An  act  to  amend  the  act  for  the  better  government 

of  servants  and  slaves   (1753,  c.  7)  :    in  respect  to  runaways. 

c.  26.  An  act  to  amend  the  act  (1748,  c.  38)  which  for 

the  trial  of  slaves  required  the  issue  of  a  special  commission  : — 
Sec.  1,  provides  for  issuing  commissions  of  oyer  and  terminer, 
directed  to  the  justices  of  each  county  respectively,  empowering 
them  from  time  to  time  to  try,  condemn  and  execute,  or  otherwise 
punish  or  acquit,  all  slaves  committing  capital  crimes  within  their 
county  ;  and  when  any  commission  for  constituting  justices  of 
the  peace  shall  hereafter  issue,  a  general  commission  of  oyer  and 
terminer  for  the  purposes  aforesaid  shall  be  sent  therewith,  &c. 
2,  Court  how  convened,  &c.,  "without  the  solemnity  of  a 
jury,"  &c.  Another  sec.  allows  benefit  of  clergy  where  a  slave  is 
convicted  of  manslaughter  for  killing  a  slave. — 8  Hen.  133,  135, 
137. 

1769,  c.  19.  A7i  act  to  amei^d  the  act,  dc,  (the  same  act  of 
1748,  c.  38.)  Sec.  1,  reciting  that  by  the  act  "the  county 
courts  within  this  dominion  are  impowered  to  punish  outlying 
slaves  who  cannot  be  reclaimed,  which  punishment  is  often  dis- 
proportioned  to  the  offence  and  contrary  to  the  principles  of 
humanity.  Be  it,  &c.,  that  it  shall  not  be  lawful  for  any  county 
court  to  order  and  direct  castration  of  any  slave,  except  such 
slave  shall  be  convicted  of  an  attempt  to  ravish  a  white  woman, 
in  which  case  they  may  inflict  such  punishment." 

The  remaining  sections  relate  to  runaway  slaves. 

c.  37.  An  act  for  exempting  free  negro,  mulatto,  and 

Indian  women  from  the  payment  of  levies — referring  to  previous 
statutes  declaring  such  persons  tithable,  and  chargeable  with 
public,  &c.,  levies,  "which  is  found  very  burdensome  to  such 
negroes,  mulattoes,  and  Indians,  and  is  moreover  derogatory  to 
the  rights  of  freeborn  subjects" — enacts  that  "all  free  negro, 
mulatto  and  Indian  women,  and  aU  wives,  other  than  slaves,  of 
free  negroes,  mulattoes  and  Indians,"  shall  be  exempted. — 8 
Hen.  358,  393. 

1772,'  c.  9.  An  act  for  amending  the  acts  concerning  the 

'  As  an  expression  of  the  sense  of  the  people  of  Virginia,  at  this  time,  on  the  sub- 
ject of  slavery :  see  Petition  of  the  House  of  Burgesses,  April  1,  1772,   addressed  to 


246  LAWS    OF    VIRGINIA. 

trials  and  outlawries  of  slaves.  Sec.  1.  Slaves  convicted  of  house- 
breaking in  the  night,  are  not  excluded  from  clergy  unless  a  free- 
man in  the  like  case  would  be  so.  2.  Sentence  of  death  not  to 
be  passed  upon  a  slave,  unless  four  of  the  court,  being  a  ma- 
jority, concur.  3.  That  no  justice  or  justices  of  the  peace  of 
this  Colony  shall,  by  virtue  of  the  said  act,  issue  a  proclamation 
against  any  slave  authorizing  any  person  to  kill  or  destroy  such 
slave,  unless  it  shall  appear  to  the  satisfaction  of  such  justice  or 
justices  that  such  slave  is  outlying  and  doing  mischief ;  and  if 
any  slave  shall  hereafter  be  killed  or  destroyed  by  virtue  of  any 
proclamation,  issued  contrary  to  this  act,  the  owner  or  proprietor 
of  such  slave  shall  not  be  paid  for  such  slave  by  the  public  ; 
any  thing  in  the  said  recited  act  (1748,  c.  38.  §  21,  22.)  to  the 
contrary,  &c. 

1775.  Ordinance  of  convention,  c.  4,  sec.  2,  that  the  voters 
for  representatives  shall  be  "the  freeholders  properly  qualified 
by  law  to  vote  for  burgesses;"  c.  7,  one  clause  provides  for  the 
transportation  to  the  West  India  islands  of  any  slave,  "  taken 
in  arms  against  this  colony,  or  in  the  possession  of  an  enemy, 
through  their  own  choice,"  by  the  Committee  of  Safety  : — the 
owners  to  be  paid.     9  Hen.  106. 

1776,  June  12.  By  the  Convention  of  Delegates,  the  ordi- 
nance 9  Hen.  109,  unanimously  adopted,  known  as  the  Virginia 
Declaration  of  Rights  (1  Hen.  47),  of  which  the  first  article 
reads,  "  That  all  men  are  by  nature  equally  free  and  independ- 
ent, and  have  certain  inherent  rights  of  which  when  they  enter 
into  a  state  of  society,  they  cannot  by  any  compact  deprive  or 
divest  their  posterity  ;  namely  the  enjoyment  of  life  and  lib- 
erty, with  the  means  of  acquiring  and  possessing  property,  and 
the  pursuing  and  obtaining  happiness  and  safety.*     The  fourth 

the  King,  "  to  remove  all  those  restraints  on  your  Majesty's  governors  of  this  colony 
which  may  inhibit  their  assenting  to  such  laws  as  may  check  so  very  pernicious  a  com- 
merce," meaning  the  importation  of  slaves,  2  Tucker's  Blackstone,  App.  51. 

'  See  conflict  of  judicial  opinion  as  to  the  personal  extent  of  this  article  in  Hud- 
gins  V.  Wrights,  1  Hen.  &  Munford's  R.  pp.  134,  143.  Wherein  the  Chancellor, 
George  Wj-the  (one  of  the  signers  of  the  Continental  Declaration  of  Independence), 
"  on  the  ground  that  freedom  is  the  birth-right  of  every  human  being,  which  senti- 
ment is  strongly  inculcated  in  the  first  article  of  our  'poUtical  catechism,'  the  bUl  of 
rights — he  laid  it  down  as  a  general  position,  that  whenever  one  person  claims  to  hold 
another  in  slavery,  the  onus  jprobandi  lies  on  the  claimant."     The  Court  of  Appeals 


LAWS    OF    MARYLAND.  247 

article—"  That  no  man  or  set  of  men  are  entitled  to  exclusive 
or  separate  emoluments  or  privileges  from  the  community,  &c." 
The  sixth—"  That  all  men,  having  sufficient  evidence  of  per- 
manent common  interest  with  and  attachment  to  the  commu- 
nity, have  the  right  of  suffrage,"  &c. 

1776.  June  26.  In  the  preamble  to  the  Constitution  or 
form  of  government,  9  Hen.  112,  adopted  by  the  Delegates,  is 
recited  that  the  King  had  perverted  the  kingly  office  mto  a 
"detestable  and  insupportable  tyranny,  by  — "  &c.,  among 
which—"  prompting  our  negroes  to  rise  in  arms  among  us— 
those  very  negroes  whom,  by  an  inhuman  use  of  his  negative, 
he  hath  refused  us  permission  to  exclude  by  law."  No  formal 
bill  of  rights  is  incorporated  with  this  constitution.  The  seventh 
article  i^rovides  that  "  the  right  of  suffrage  in  the  election  of 
members  for  both  Houses,  shall  remain  as  exercised  at  present." 

§  219.  Legislation  of  Maryland. 

The  territory  constituting  the  present  State  of  Maryland 
had,  before  the  grant  to  Lord  Baltimore,  June  20,  1632,' 
been  included  within  the  limits  of  the  Virginia  colony.  What- 
ever laws  had  territorial  extent  in  Virginia  before  that  date, 
may  be  taken  to  have  been  law  in  Maryland. 

1637.  In  the  assembly  of  this  year,  the  first  of  the  colony, 
the  freemen  agreed  to  a  number  of  biUs  which  were  never  enacted 

held  •  -  "  This  Court,  not  approving  of  the  Chancellor's  principles  and  reasoning  in  his 
decre;  made  in  this  ckuse,  except  so  far  as  the  same  relates  to  white  persons  and  native 
IZicZ  Indians,  but  entirely  disapproving  thereof  so  far  as  the  same  re  at<^  to  na- 
tive Africans  and  their  descendants,  who  have  been  and  are  now  held  as  slaves  by  the 
citizens  of  this  State,  and  di.=covering  no  other  error,"  &c.  :.u  +!,„ 

'  The  charter,  s  7,  granted  legislative  powers  to  the  Lord  Proprietor,  '' with  the 
advice,  assent  and  approbation  of  the  freemen  of  the  same  province  or  the  greater 
nart  of  them  or  of  heir  delegates  or  deputies,"  *  *  "  so,  nevertheless,  that  the 
faws  aforesaid  be  consonant  to  reason,  and  be  not  repugnant  or  contrary  b,t  (so  far  as 
convenientlv  may  be)  agreeable  to  the  laws,  statutes,  customs  and  rights  of  thi*  our 
kSom  of  England."  ° Sec.  8,  mentions  "the  Freeholders  of  the  said  Provmce, 
thefr  delegates  &c.  Sec.  10,  provides,  "  that  all  and  singular  the  subjects  and  liege- 
men of  ur,  our'  heirs  and  successors,  transplanted  or  he- after  to  ^^  transp Ian  ed  u^ 
the  province  aforesaid,  and  the  children  of  them  and  of  others  their  descendants, 
whether  already  born  there  or  hereafter  to  be  born,  be  and  shall  be  "'^t'^.^^f  " 

menofus,&c.,&c.     *     *     --'^  ^^^V""  f  "^'"''l'^'''  ^'"'^^^^^^ 

this  our  kingdom  of  England,  freely,  &c.,  have  and  possess,"    &c.,  &c.   Bacons  laws 

of  Maryland. 


248  LAWS   OF    MARYLAND. 

into  laws.  A  list  only  of  these  has  been  preserved,  of  which  one 
is  A  bill  for  punishment  of  ill  servants,  another  for  limiting 
the  times  of  service.  See  Bacon's  laws,  from  which  the  follow- 
ing citations  of  laws  are  taken, 

1638,  c.  2.  An  act  ordaining  certain  laios  forthe  govern- 
ment of  this  province  (limited  to  three  years).  The  fourth 
section  provides,  "  The  inhabitants  shall  have  all  their  rights 
and  liberties  according  to  the  great  charter  of  England." 

In  a  list  of  bills  twice  read,  and  engrossed  but  never  passed, 
is  An  act  for  the  liberties  of  the  people.  "  They  are  thus  enu- 
merated in  the  Bill,  viz.,  all  Christian  inhabitants  (slaves  ex- 
cepted) to  have  and  enjoy  all  such  rights,  liberties,  immunities, 
pri\'ileges  and  free  customs,  within  this  province,  as  any  natural 
born  subject  of  England  hath  or  ought  to  have  or  enjoy  in  the 
realm  of  England,  by  force  or  \irtue  of  the  common  law  or  stat- 
ute law  of  England,  saving  in  such  cases  as  the  same  are  or  may 
be  altered  or  changed  by  the  laws  and  ordinances  of  this  prov- 
ince, &c." 

1641,  c.  6.  An  act  against  Fugitives. — "This  act  (which 
made  it  felony  of  death,  together  with  forfeiture  of  lands,  goods, 
&c,,  for  any  apprentice  servant  to  depart  away  secretly  from 
his  or  her  master  or  dame,  with  intent  to  convey  him  or  herself 
away  out  of  the  province  ;  and  in  any  other  person  that  should 
willingly  accompany  such  servant  in  such  unlawful  departure, 
unless  his  Lordship  or  his  Lieutenant-General  should  think 
proper  to  change  such  pains  of  death  into  a  servitude  not  ex- 
ceeding seven  years,  &c.),  was  superseded  by  the  act  of  1649, 
c.  5,  which  last  was  repealed  by  1676,  c.  7. 

There  are  various  acts  and  titles  of  acts,  given  in  Bacon's 
laws,  relating  to  servants,  fugitives,  runaways,  and  those  that  en- 
tertain them,  servants  that  have  bastards,  &c.  It  is  remark- 
able that  these  laws,  and  the  early  statutes  respecting  negro 
slaves,  were  enacted  for  short  j^eriods,  usually  three  years,  and 
were  continued  from  time  to  time  by  re-enactments.  Their 
provisions  are  so  similar  to  those  of  Virginia,  on  the  same  sub- 
ject, that  it  is  not  necessary  to  make  a  particular  statement  of 
them.    The  same  collection  contains  numerous  acts  naturalizing, 


LAWS    OF    MARYLAND,  249 

on  petition,  persons  of  French,  Dutch  and  Swedish  surnames. 
The  first  statute  relating  to  negro  slaves,  which  in  this  collection 
is  given  in  full,  is  that  of  1715,  c.  44.  Others  before  that  date 
are  described  by  their  titles  only.  The  earliest  law  on  the  sub- 
ject appears  to  have  been  that  of 

1663,  c.  30.  All  act  concerning  negroes  and  other  slaves, 
confirmed  by  1676,  c.  2.  This  is  not  given  in  Bacon's  laws  ;  as 
cited,  Butler -y.  Boarman,  1  Harris  &  McHenry,  37,'  it  enacts,  s. 
1.  "  All  negroes  or  other  slaves  within  the  province,  and  all  ne- 
groes and  other  slaves  to  be  hereafter  imported  into  the  pro- 
vince, shall  serve  durante  vita  ;  and  all  children  born  of  any  ne- 
gro or  other  slave,  shall  be  slaves  as  their  fathers  were  for  the 
term  of  their  lives.''  Sec.  2.  "  And  forasmuch  as  divers  free- 
born  English  women,  forgetful  of  their  free  condition,  and  to  the 
disgrace  of  our  nation,  do  intermarry  with  negro  slaves,  by  which 
also  divers  suits  may  arise,  touching  the  issue  of  such  women, 
and  a  great  damage  doth  befall  the  master  of  such  negroes,  for 
preservation  whereof  for  deterring  such  free-born  women  from 
such  shameful  matches,  be  it  enacted,  &c.  :  That  whatsoever 
free-born  woman  shall  intermarry  with  any  slave,  from  and  af- 
ter the  last  day  of  the  present  assembly,  shall  serve  the  master 
of  such  slave  during  the  life  of  her  husband  ;  and  that  all  the 
issue  of  such  free-born  women,  so  married,  shall  be  slaves  as 
their  fathers  were."  Sec,  3.  "And  be  it  further  enacted,  that 
all  the  issues  of  English,  or  other  free-born  women,  that  have 
already  married  negroes,  shall  serve  the  master  of  their  parents, 
tiU  they  be  thirty  years  of  age  and  no  longer." 

1666,  c.  22,  An  act  against  runaways  and  such  as  shall  en- 
tertain them,  extended,  1671,  c.  19  ;  rep.  1676,  c.  2. 

1669,  c,  18,  An  act  for  preventing  servants  and  criminal 
persons  running  out  of  this  province. 

1671,  c.  2  An  act  encouraging  the  importation  of  negroes 
and  slaves  into  this  province,  confirmed,  1676,  c.  2  :  a  new  act 
1692,  c.  52. 

1676,  c.  7.  An  act  relating  to  servants  and  slaves  ; — for 

'  On  a  claim  for  freedom  by  the   descendants  of  Eleanor  Butler  in  1770,  see  also 
2  Harris  &;  .McHenry,  21-i.     1  Hildr.  568.     Stroud's  Sketch,  &c.,  p.  15. 


250  LAWS    OF    MARYLAND. 

three  years,  but  re-enacted  (a  new  act  1692,  c.  15).  c.  16,  An 
act  against  the  importation  of  convicted  persons  into  this  Fro- 
vince  ;  continued  by  re-enactments  ;  a  new  law  1692,  c.  74. 

1681,  c.  4.  An  act  concerning  servants  and  slaves.  This 
act  is  cited  in  Butler  v.  Boarman,  1  Harris  &  McHenry,  372. 
The  first  section  is  to  the  same  effect  as  the  first  of  1663,  c.  30. 
Sec.  2,  recites — "  Forasmuch  as,  divers  free-born  English,  or 
white  women,  sometimes  by  the  instigation,  procurement  or  con- 
nivance, of  their  masters,  mistresses,  or  dames,  and  always  to 
the  satisfaction  of  their  lascivious  and  lustful  desires,  and  to 
the  disgrace  not  only  of  the  English,  but  also  of  many  other 
Christian  nations,  do  intermarry  with  negroes  and  slaves,  by 
which  means,  divers  inconveniences,  controversies,  and  suits  may 
arise,  touching  the  issue  or  children  of  such  free-born  women 
aforesaid  ;  for  the  prevention  whereof  for  the  future,  he  it,  &c., 
enacts  that  if  the  marriage  of  any  woman-servant  with  any 
slave  shall  take  place  by  the  procurement  or  permission  of  the 
master,  such  woman  and  her  issue  shall  be  free,  and  enacts  a 
penalty  by  fine  on  the  master  or  mistress  and  on  the  person 
joining  the  parties  in  marriage. 

1692.  c.  15.  An  act  relating  to  servants  and  slaves.  A  new 
act,  1699,  c.  43  ;  c.  52,  An  act  for  the  encouragement  of  the 
importation  of  negroes  and  slaves  into  this  Province,  c.  79,  An 
act  concerning  negroes  and  slaves,  continued  by  re-enactments.' 

1695,  c.  6.  An  act  restraining  the  frequent  assembling  of 
negroes  within  this  province  ; — temporary  but  continued  by  re- 
enactments. 

1696,  c.  7.  An  act  laying  an  imposition  on  negroes,  slaves 
and  white  persons  imported  ;  afterwards  included  in 

1699,  c.  23.  An  act  for  raising  a  supply,  &c.,  and  to  pre- 
vent too  great  a  number  of  Irish  papists  being  imported  into 
this  Province. 

^  The  titles  only  are  given  in  Bacon's  laws.  In  "  Plantation  laws"  (London  1705). 
Maryland,  p.  50,  a  law  of  this  year  is  cited.  "  Where  any  negro  or  slave,  being  in 
servitude  or  bondage,  is  or  shall  become  Christian,  and  receive  the  sacrament  of  bap- 
tism, the  same  shall  not  nor  ought  to  be  deemed,  adjudged  or  construed  to  be  a  manu- 
mission or  freeing  of  any  such  negro  or  slave,  or  his  or  her  issue,  from  their  servitude 
or  bondage,  but  that  notwithstanding  they  shall  at  all  times  hereafter  be  and  remain 
in  servitude  and  bondage  as  they  were  before  baptism,  any  opinion,  matter  or  thing  to 
the  contrary  notwithstanding." 


LAWS    OF    MARYLAND.  251 

1699,  c.  43.  An  act  relating  to  servants  and  slaves' — a 
new  act  made  1704,  c.  23,  which  was  replaced  by  the  revision 
1715,  c.  47. 

'1700,  c.  8.  A71  act  for  repealing  coiain  laivs,  &c.  All 
the  acts  before  mentioned,  passed  before  1699,  except  that  of 
1692,  c.  52,  for  encouragement  of  the  importation  of  slaves, 
are  repealed.' 

1704,  c.  33.  An  act  imposing  three  pence  per  gallon  on  rum 
and  wine,  brandy  and  spirits,  and  twenty  shillings  per  poll  for 
negroes,  for  raising  a  supply  to  defray  the  p)ublic  charge  of  this 
province,  and  twenty  shillings,  per  poll,  on  Irish  servants, 
to  prevent  the  importing  too  great  a  nuynher  of  Irish  ptapists 
into  this  province,"  enacted  for  three  years,  but  afterwards  re- 
vived and  continued  by  various  acts,  the  last  being  that  of  1783, 
c.  20,  enacted  for  twenty-one  years. 

c.  93.  An  act  for  the  advancement  of  the  natives  and 

residents  of  this  p)rovince  ;  enacts  that  no  persons  shall  liold 
office,  with  the  exception  of  those  commissioned  by  the  crown, 
until  after  three  years'  residence. 

1705,  c.  6.  An  act  for  punishment  of  persons  selling  or 
transporting  any  friend  Indian  or  Indians,  out  of  this  Province 
— continued  in  the  revision  of  1715. 

1715,  c.  15,  sec.  5.  "And  for  the  better  ascertaining  what 
persons  are  and  shall  be  deemed  taxables^  and  what  not,  he  it 
enacted,  that  all  male  persons,  residents  in  this  province,  and  all 


'  In  "Plantation  laws,"  Maryland,  p.  68,  an  act  is  <^iven  of  tliis  date  :  it  contains 
provisions  respecting  servants,  similar  to  those  in  Virginia  and  other  colonies.  Sec. 
19,  provides, — "  All  negroes  and  other  slaves  imported  into  this  province,  and  their 
children,  shall  be  slaves  during  their  natural  Uves."  Sec.  20.  "  Any  white  woman, 
free  or  servant,  that  suffers  herself  to  be  begot  with  child,  by  a  negro,  or  other  slave, 
or  free  negro  ;  such  woman,  if  free,  shall  become  a  servant  for  seven  years ;  if  a  ser- 
vant, shall  serve  seven  years  longer  than  her  first  term  of  service.  If  the  negro  that 
begot  the  child  be  free,  he  shall  serve  seven  years  to  be  adjudged  by  the  justices  of  the 
county  court,  and  the  issue  of  such  copulations  shall  be  servants  till  they  arrive  at  the 
age  of  thirty-one  years.  And  any  white  man  that  shall  get  a  negro  woman  with 
child  (whether  free  or  sen-ant)  shall  undergo  the  same  penalties  as  white  women." 

'  Mr.  Stroud,  in  Sketch,  &c.,  2d  ed.,  p.  IG,  observes  that  the  rule  attributing  sla- 
very to  the  issue  of  slave  fathers  being  repealed  by  this  act,  there  was  no  imtten  law 
to  determine  the  condition  of  the  issue  of  slaves  until  1715,  c.  44.  Whether  the  law 
of  1704,  c.  2.3,  contained  any  rule  does  not  app)ear  in  Bacon's  laws. 

'  That  is,  for  the  poll  tax,* abolished  by  the  State  bill  of  rights.  1  Dorsey's  laws,  p. 
8.     Compare  the  note  on  the  Virginia  law  of  1649,  c.  2,  relating  to  tithables. 


252  LAWS    OF    MARYLAND, 

female  slaves  therein  of  the  age  of  sixteen  years  or  above,  shall 
be  accounted  taxables" — with  some  exceptions. 

1715,  c.  19.  An  act  prohibiting  all  masters  of  ships  or  ves- 
sels, or  any  other  j^erson,  from  transporting  or  conveying  away 
any  person  or  persons  out  of  this  Province  ivithout  passes.  By 
sec.  3,  every  person  who  shall  convey  away  "any  servant  or  ser- 
vants, being  senMnts  here  by  condition  for  wages,  indenture,  or 
custom  0^  the  country,  shall  be  liable,  &c.  Sec.  5.  Persons  who 
shall  entice,  transport,  &c.,  any  apprentice  or  other  servants  or 
slaves  belonging  to  any  inhabitant,  &c.  (1  Dorsey's  laws,  p.  9  ; 
note,  see  1753,  c.  9  ;  1748,  c.  19  ;  1793,  c.  45  ;  1780,  c.  24 ; 
1824,  c.  85  ;  1818,  c.  157.) 

c.  44,  A9i  act  relating  to  servants  and  slaves,  con- 
tains 135  sections,  similar  in  effect  to  contemporary  Virginia 
laws.  Sec.  6,  relates  to  runaways,  and  the  apprehension  of  any 
person  or  persons  whatsoever  travelling  out  of  the  county 
wherein  they  reside  with  a  pass,  or  persons  "  not  sufficiently 
known  or  able  to  give  a  good  account  of  themselves."  23. 
Provides  that  all  negroes  and  other  slaves,  already  import- 
ed or  hereafter  to  be  imported  into  this  province,  and  all 
children  now  born  or  hereafter  to  be  born  of  such  negroes  and 
slaves,  shall  be  slaves  during  their  natural  lives.  24.  De- 
claratory that  baptism  of  slaves  does  not  thereby  manumit  or 
set  free  such  slaves.  26.  White  women  got  with  child  by 
slaves  or  free  negroes  shall  become  servants  for  seven  years. 
27.  The  free  negro  father  to  serve  a  like  period,  and  the 
children  until  thirty-one  years  of  age.  28.  Any  white  man 
that  shall  beget  any  negro  woman  with  chOd,  whether  free  wo- 
man or  servant,  shall  undergo  the  same  penalties  as  white  wo- 
men. See  the  abstract  in  2  Hildr.  323,  and  the  provisions  as 
to  runaways,  &c.,  in  Stroud's  Sketch,  2d  ed.,  131. 

1717,  c.  13.  An  act  supplementaiy  to  the  above.  Sec,  2, 
enacts  that  "  no  negro  or  mulatto  slave,  free  negro,  or  mulatto 
born  of  a  white  woman,  during  his  time  of  servitude  by  law,  or 
any  Indian  slave  or  free  Indian,  natives  of  this  or  the  neighbor- 
ing provinces,  be  admitted  or  received  as  good  and  valid  evi- 
dence in  law,  in  any  matter  or  thing  whatsoever,  depending 


LAWS    OF    MARYLAND.  253 

before  any  court  of  record,  or  before  any  magistrate  witliin  this 
province  wherein  any  Christian  white  person  is  concerned.  3. 
Admits  their  evidence  against  one  another,  provided  not  extend- 
ing to  depriving  of  hfe  or  member.  4.  Provides  for  paying  the 
owner  when  the  slave  has  been  capitally  convicted.  5.  Negroes 
or  mulattoes  of  either  sex,  intermarrying  with  whites,  are  to  be 
slaves  for  life  ;  except  mulattoes  born  of  white  women,  who  shall 
serve  for  seven  years  ;  and  the  white  party  for  the  same  time. 
Supplementary  are  acts— 1 VI 9,  c.  2  ;  1728,  c.  4  ;  1748,  c.  19  ; 
1765,  c.  28. 

1723,  c.  15.  An  act  to  prevent  the  tumultuous  meeting  and 
other  irregularities  of  negroes  and  other  slaves.  Sec.  4.  That 
"  negro  or  other  slaves  striking  white  persons — their  ears  may  be 
cropt  on  order  of  a  Justice."  6.  Forbids  slaves  possessing  cattle. 
7.  Negroes  outlying  and  resisting  may  be  "  shot,  killed  or  destroy- 
ed." Supplementaiy  act,  1751,  c.  14.  Value  of  slave  killed  to  be 
paid  to  the  owner.    Supplementary  are  1737,  c.  7  ;  1753,  c.  26. 

1728,  c.  4.  Supi^lementary  to  1715,  c.  44.  Free  mulatto 
women,  having  bastard  children  by  negroes  and  other  slaves, 
and  free  negro  women,  having  bastard  children  by  white  men, 
and  their  issue,  are  subjected  to  the  same  penalties  which,  in 
the  former  act,  sec.  26,  are  provided  against  white  women. 

1729,  c.  4.  Keciting  that  many  petit  treasons  and  cruel 
murders  have  been  committed  by  negroes,  and  "  that  the  man- 
ner of  executing  oflfenders  prescribed  by  the  laws  of  England  is 
not  sufficient  to  deter  a  people  from  committing  the  greatest 
cruelties  who  only  consider  the  rigour  and  severity  of  punish- 
ment," provides  that  any  negro  or  other  slave,  on  conviction  of 
certain  crimes,  shall  be  hanged,  and  the  body  quartered  and 
exposed. 

1731,  c.  7.  Supplementary  to  above  act  and  to  1723,  c.  15. 
Continued  1740,  c.  7  ;  1744,  c.  18  ;  1747,  c.  16— incorporated 
in  new  law,  1751,  c.  14. 

1750,  c.  5.  To  remedy  some  evils  relating  to  servants,  tem- 
porary, but  continued  by  1766,  c.  5  ;  1773,  c.  12  ;  1781,  c.  29. 

1751,  c.  14.  A  revisal  of  the  acts  relating  to  punishment 
of  crimes  committed  by  slaves.     Sec.  2,  4,  providing  for  punish- 


254  LAWS   OF    MASSACHUSETTS. 

ment  of  death  without  benefit  of  clergy.  A  trial  by  jury  and 
justices  of  assize,  as  in  case  of  other  persons,  appears  to  be  con- 
templated.— For  three  years.  Supplementary,  is  1753,  c.  26  ; 
continued  by  1754,  c.  19  ;  1765,  c.  17. 

1752,  c.  1.  An  act  to  prevent  disabled  and  superannuated 
slaves  being  set  free,  or  the  manumission  of  slaves  by  any  last 
luill  or  testament.  Temporary — continued  1766,  c.  1  (for  20 
years). 

1763,  c.  28.*  An  act  imposing  additional  duties  on  slaves, 
continued  1766,  c.  13  ;  1773,  c.  14  (7  years). 

1776,  July  3.  The  provincial  convention  at  Annapolis,  re- 
solving on  the  election  of  a  new  convention,  to  "  be  elected  for 
the  express  purpose  of  forming  a  new  government  by  the  au- 
thority of  the  people  only."  "  All  free  men  above  twenty-one 
years,  being  freeholders  of  not  less,"  &c.,  or  having  property  of 
value  designated,  were  to  be  admitted  to  vote.  Maryl.  laws  for 
Annapolis,  1787. 

§  220.  Legislation  of  Massachusetts. 

The  colonists  who  landed  at  Plymouth,  in  1620,  exercised, 
until  the  year  1692,  a  separate  legislative  power  over  a  portion 
of  the  present  State  of  Massachusetts.  Their  enactments  have 
been  published  separately  from  those  of  the  colony  of  Massa- 
chusetts Bay,  under  the  name  of  the  Plymouth  Colony  Laws, 
edited  by  W.  Brigham,  Boston,  1836.  In  these,  pp.  36,  50,  the 
origin  of  their  legislative  power  is  ascribed  to  their  compact, 
signed  11  Nov.  1620.  These  laws  do  not  contain  any  declara- 
tion in  the  nature  of  a  bill  of  rights  beyond  that  first  printed  in 
1661,  and  first  declared  in  1636,  under  the  name  of  the  General 
Fundamentals.^  Plym.  Col.  Laws,  advertis.  p.  viii.  and  Part  III. ; 

*  This  is  the  last  year  of  Bacon's  laws. 

*  This  was,  for  the  greater  part,  a  declaration  of  political  power.  It  will  be  re- 
membered that  the  Plymouth  colonists  had  no  charter  from  the  king.  The  patent  for 
Virginia,  of  1606,  applied  to  the  entire  region  of  America  claimed  by  the  English. 
See  its  guarantees,  ante,  p.  228,  note.  "  The  great  patent  of  New  England,"  of  1620, 
established  a  council  in  "  Ph-mouth,  in  the  county  of  Devon,"  in  England,  and  empowered 
them  to  "  ordain  and  establish  all  manner  of  orders,  laws,  directions,  instructions, 
forms  and  ceremonies  of  government  and  magistracy,  fit  and  necessary  for  and  con- 
cerning the  government  of  the  said  colony  and  plantation  [New  England],  so  always 


LAWS   OF    MASSACHUSETTS.  255 

the  first  and  fourth  articles  of  which  have  this  character  and 
have  already  been  cited.'  They  contain  some  provisions  re- 
specting indentured  servants,  pp.  34,  35,  47,  58,  61,  65,  81, 
140,  195.  From  these,  however,  it  would  appear  that  the  con- 
dition of  such  servants,  if  of  English  origin,  was  in  this  colony 
less  burdensome  than  that  of  persons  of  the  same  class  in  other 
settlements,  and  that  the  policy  of  the  colony  was  to  encourage 
their  emancipation  and  facilitate  their  settlement  on  land  of 
their  own. 

It  would  seem  that  such  persons  even  participated  in  the 
exercise  of  the  elective  franchise  during  the  first  sixteen  years  of 
the  settlement.'^  But  it  appears  that  in  1636,  not  even  all 
male  freeholders  were  entitled  to  vote,  and  the  laws  distinguish 
"  freemen"  or  "  associates"  as  a  distinct  portion  of  the  inhab- 
itants, constituting  a  corporation.  Ply.  Col.  L.  pp.  42,  62,  100, 
108, 113.^  In  1657,  it  was  enacted  "  that  all  such  as  reside 
within  this  government  "  that  are  att  theire  owne  despose," 


as  the  same  be  not  contrary  to  the  laws  and  statutes  of  this  our  realm  of  Engand,"  &c. 
The  "  principal  governors  "  were  empowered  to  govern  by  the  laws  so  established, 
"  so  alwaj's  as  the  statutes,  ordinances,  and  proceedings,  as  near  as  conveniently  may, 
be  agreeable  to  the  laws,  statutes,  government,  and  police  of  this  our  realm  of  Eng- 
land." It  was  also  provided  "  that  the  persons,  being  our  subjects,  which  shall  go 
and  inhabit,"  &c.,  should  have  the  privileges  of  subjects  bom  in  England  (in  words 
almost  literally  the  same  as  those  used  in  the  second  charter  of  Virginia,  ante,  p.  229). 
See  Patent  in  1  Hazard,  103,  and  summaries  ;  1  Ban.  272;  1  Hild.  152.  The  council 
for  New  England,  under  this,  granted  a  patent  to  Governor  Bradford  and  "  his  asso- 
ciates,'' the  Plymouth  colonists,  1630,  with  powers  of  government  according  to  the 
terms  of  the  Great  Patent,  1  Haz.  298 ;  Plym.  Col.  Laws,  21.  A  patent  issued  for 
their  benefit  to  John  Pierce,  in  1621.  See  Young's  Chronicles,  p.  114,  n. ;  Plym. 
Col.  Laws,  p.  50,  This  patent  seems  not  to  have  been  used.  As  to  powers  derived 
from  patents,  see  ante,  §  127. 

'  Ante,  §  129. 

'  Some  of  the  signers  of  the  original  compact  are  designated  as  persons  "dn  the 
family"  of  some  one  of  the  others.  See  Prince,  Part  II.  p.  86,  105.  1  Banc.  322.  "For 
more  than  eighteen  years  'the  whole  body  of  the  male  inhabitants'  constituted  the 
legislature."  If  the  .same  anomaly  existed  in  the  colony  of  Massachusetts  Bay,  the 
exception  herein  before  taken  (p.  121,  n.  4,)  to  Mr.  Bancroft's  statement  is  ill-founded. 
At  the  period  when  slavery  or  bondage  existed  under  the  Saxon  law,  and  the  term 
freemen  designated  a  class  having,  by  the  elective  franchise,  a  share  of  political  power, 
still,  all  who  were  not  bondsmen  were  not  freemen,  in  that  sense.  N.  Bacon's  Hist. 
Disc.  p.  56,  describing  the  Free-lazzi,  "  yet  attained  they  not  to  the  full  pitch  of  free- 
men ;  for  the  lord  might  acquit  his  own  title  of  bondage,  but  no  man  could  be  made 
free  without  the  act  of  the  whole  body."     Comp.  ante,  p.  125,  n.  2,  p.  136,  n.  3. 

'  Thus  assuming  to  have  that  legal  foundation  for  their  civil  polity,  which  the 
"  freemen  of  the  company  "  of  the  colony  of  Massachusetts  Bay  claimed  for  them- 
selves under  their  charter  from  the  kiuj;. 


256  LAWS    OF    MASSACHUSETTS. 

who  would  not  take  the  oath  of  fidelity  should  depart  the  gov- 
ernment or  pay  a  fine,  Plym.  Col.  L.  p.  102.' 

No  mention  is  made  of  negroes  or  of  slaves.  But  from 
certain  regulations,  in  1676,  it  appears  that  there  were  some 
Indian  captives  held  as  slaves,  and  liable  to  be  sold  as  such, 
Plym.  Col.  L.  pp.  177,  178,  and  on  p.  187.  "  This  courte  sees 
cause  to  prohibit  all  and  every  person  or  persons  within  our 
Jurisdiction  or  elsewhere,  to  buy  any  of  the  Indian  children  of 
any  of  those  our  captive  salvages  that  were  taken  and  became 
our  lawful!  prisoners  in  our  late  warres  with  the  Indians,  without 
special  leave,  liking,  and  approbation  of  the  government  of  this 
jurisdiction." 

Special  regulations  for  Indians,  enacted  1682,  are  found, 
p.  196. 

It  is  difficult  to  fix  the  precise  date  of  many  of  the  enact- 
ments proceeding  from  the  Colony  of  Massachusetts  Bay.^  This, 
however,  is  not  very  material  for  the  present  purpose.  The  ex- 
ercise of  local  legislative  power  dates  from  October  19,  1630, 
when  the  general  court  of  the  "freemen"  or  members  of  the 
corporate  body  created  by  the  royal  charter  of  March,  1629,^ 
was  first  held  at  Boston. 

1631,  May.  "  To  the  end  that  the  body  of  freemen  may  be 
preserved  of  honest  and  good  men  :  It  is  ordered  that  hence- 
forth no  man  shall  be  admitted  to  the  freedom  of  this  common- 
wealth, but  such  as  are  members  of  some  of  the  churches  within 
the  limits  of  this  jurisdiction."  Charters,  &c.,  p.  117  {see  jpost, 
laws  1660,  1665). 

*  Analogous  to  this  were  the  laws  against  Quakers,  who  would  acknowledge  no 
civil  authority.  ^ 

^'  See  the  Advertisement  hy  the  compilers  of  the  Charters  and  General  Laws  of  the 
Colony  and  Province  of  Massachusetts  liay.     Boston,  1814.   8vo. 

'  By  the  name,  "  the  Governor  and  Company  of  Massachusetts  Bay,  in  New  Eng- 
land," the  corporators  had  a  patent  from  the  council  of  Plymouth,  in  England,  dated 
March  19,  1628.  The  governor,  deputy,  and  assistants  pro\-ided  for  the  government 
hy  the  charter  were  to  be  chosen  out  of  the  "  freemen"  or  stockholders  first  named 
therein,  and  those  admitted  by  them  in  general  courts,  at  which  laws  might  be  enacted 
for  the  government  of  the  colony  "  so  as  such  laws  and  ordinances  be  not  contrary  or 
repugnant  to  the  laws  and  statutes  of  this  our  realm  of  England."  In  terms  almost 
identical  with  the  15th  art.  of  the  Virginia  patent,  of  1606,  (ante,  p.  228,)  it  was  pro- 
vided that  all  subjects  who  should  "go  to  and  inliahit within  the  said  lands,"  &c.,  and 
their  children  should  have  "  the  liberties  and  immunities  of  free  and  natural  subjects," 
&c.     1  Hazard's  Coll  239.     Charters,  &c.,  p.  9,  13. 


LAWS    OF    MASSACHUSETTS.  257 

1632,  March.  As  an  addition  to  an  order  made  22  March, 
1630,  it  is  ordered  "  that  if  any  single  person  be  not  provided 
of  sufficient  arms  allowable  by  the  captains,  &c.,  he  shall  be 
compelled  to  serve  by  the  year,  with  any  master  that  will  retain 
him  for  such  wages  as  the  court  shall  think  meet  to  appoint." 
Charters,  &c.,  App.  p.  712. 

1633-7. — It  is  declared,  &c.,  "  that  what  lands  any  of  the 
Indians  in  this  jurisdiction  have  possessed  and  improved,  by 
subduing  the  same,  they  have  just  right  unto,  according  to  that 
in  Gen.  1,  28  and  ch.  9,  and  Psal.  115,  16.  And  for  the 
further  encouragement  of  the  hopeful  work  amongst  them  for 
the  civilizing  and  helping  them  forward  to  Christianity  ;  if  any 
of  the  Indians  shall  be  brought  to  civility  and  shall  come  among 
the  English  to  inhabit,  in  any  of  their  plantations,  and  shall 
there  live  civilly  and  orderly  ;  that  such  Indians  shaU  have  al- 
lotments amongst  the  EngUsh  according  to  the  custom  of  the 
English  in  like  case. 

"  Further  it  is  ordered,  that,  if  upon  good  experience,  there 
shall  be  a  competent  number  of  the  Indians  brought  to  civihty 
so  as  to  be  capable  of  a  township,  upon  their  request  to  the 
General  Court,  they  shall  have  grant  of  lands  undisposed  of  for 
a  plantation  as  the  English  have."  See  the  General  Laws  and 
Liberties  of  Massachusetts  Colony,  revised,  &c.,  ed.  Cambridge, 
1675.  Title — For  settling  the  Indians'  title  to  lands  in  this  ju- 
risdiction. 

In  the  same  law  there  is  a  provision,  common  in  all  the  colo- 
nies, forbidding  the  sale  of  fire-arms  and  ammunition  to  any  Indian. 

1630-1641. — "  It  is  also  ordered  that  when  any  servants 
shall  run  from  their  masters,  or  any  other  inhabitants  shall 
privily  go  away  with  suspicion  of  evil  intentions,  it  shall  be 
lawful  for  the  next  magistrate  or  the  constable  and  the  two 
chief  inhabitants,  where  no  magistrate  is,  to  press  men  and 
boats  or  finances,  at  the  public  charge,  to  pursue  such  persons 
by  sea  or  land,  and  bring  them  back  by  force  of  arms."  Char- 
ters, &c.,  ch.  68.  Title, — Acts  respecting  masters  and  laborers, 
§3. 

1636. — It  is  ordered  that  no  servant  shaU  be  set  free,  or 
17 


258  LAWS   OF    MASSACHUSETTS. 

have  any  lot,  until  he  have  served  out  the  time  covenanted  ;  un- 
der penalty  of  such  fine  as  the  quarter  courts  shall  inflict,  &c. 
Charters,  &c.,  p.  42.  Title — Acts  respecting  freemen  and  ser- 
vants.^ 

1641. — This  is  the  date  of  the  celebrated  "  Massachusetts 
Fundamentals"  or  "  Body  of  Liberties/'*  the  preamble  of  which 
is  as  follows  : 

"Forasmuch  as  the  free  fruition  of  such  liberties,  immu- 
nities and  privileges  as  humanity,  civility,  and  Christianity  call 
for  as  due  to  every  man,  in  his  place  and  proportion,  without 
impeachment  and  infringement,  hath  been  and  ever  will  be  the 
tranquillity  and  stability  of  churches  and  commonwealths,  and 
the  denial  or  deprival  thereof,  the  disturbance,  if  not  the  ruin 
of  both,  we  hold  it  therefore  our  duty  and  safety,  whilst  we  are 
about  the  further  establishing  of  this  government,  to  collect  and 
express  all  such  freedoms  as  for  the  present  we  foresee  may  con- 
cern us  and  our  posterity  after  us,  and  to  ratify  them  with  our 
solemn  consent.  We  do  therefore  this  day  religiously  and 
unanimously  decree  and  confirm  these  following  rights,  liberties 
and  privileges  concerning  our  churches  and  civil  state  to  be  re- 
spectively, impartially  and  inviolably  enjoyed  and  observed 
throughout  our  jurisdiction  forever."  (Cambr.  ed.  laws,  1675, 
p.  1.) 

The  ninety-eight  articles  of  this  code  are  classed  under 
distinct  headings  or  titles,  commencing  with  a  general  state- 
ment of  the  rights  of  the  inhabitants  in  seventeen  articles  ;  the 
first  of  which  is  as  follows  :  "No  man's  life  shall  be  taken 
away,  no  man's  honor  or  good  name  shall  be  stained,  no  man's 


*  By  the  Mass.  Records,  vol  I.,  pp.  246,  269,  it  appears  the  General  Court  sen- 
tenced certain  ofiFenders,  in  1638,  1639  "  to  be  delivered  up  a  slave  "  to  persons  ap- 
pointed by  the  court. 

It  is  believed  that  there  is  no  mention  made  of  negro  slaves  previous  to  the  act  ot 
1696  or  1698  hereinafter  cited.  But  it  appears  from  "  JossehTi's  Voyage,"  see  Mass. 
Hist.  Col,  3d  series,  vol.  III.,  p.  231,  that  there  were,  in  1639,  some  negroes  in  the 
colony  held  iu  slavery ;  and  see  Dr.  Belknap's  letter  to  Dr.  Tucker,  in  Mass.  Hist. 
Col.  ist  series,  vol.  IV.,  p.  194. 

'  For  the  history  of  this  act  and  an  abstract  of  its  provisions,  see  1  Hildr.  p.  274. 
1  Savages  Winthrop,  p.  160.  Mass.  Hist.  Col.  3d  series,  vol.  VIII.,  p.  191 ;  a  paper 
by  F.  C.  Gray,  L.L.  D.,  containing  the  history  of  the  previous  oublications,  and  a 
more  authentic  copy.     Common w.  v.  Alger,  7  Gushing,  67. 


LAWS    OF    MASSACHUSETTS.  259 

person  shall  be  arrested,  restrained,  banished,  dismembered, 
nor  any  ways  punished,  no  man  shall  be  deprived  of  his  wife  or 
children,  no  man's  goods  or  estate  shall  be  taken  away  from 
him,  nor  any  way  indamaged  under  color  of  law  or  countenance 
of  authority,  unless  it  be  by  virtue  or  equity  of  some  express  law 
of  the  country  warranting  the  same,  established  by  a  General 
Court  and  sufficiently  published ;  or,  in  case  of  the  defect  of  a  law 
in  any  particular  case,  by  the  word  of  God,  and  in  capital  cases 
or  in  cases  concerning  dismembering  or  banishment,  according 
to  that  word,  to  be  judged  by  the  General  Court." 

Article  2.  "  Every  person  within  this  jurisdiction,  whether 
inhabitant  or  foreigner,  shall  enjoy  the  same  justice  and  law 
that  is  general  for  the  plantation,  which  we  constitute  and  exe- 
cute towards  one  another  without  partiality  or  delay," 

Article  17.  "  Eveiy  man  of  or  within  this  jurisdiction,  shall 
have  free  liberty,  notwithstanding  any  civil  power,  to  remove 
both  himself  and  his  family  at  their  pleasure  out  of  the  same, 
provided  there  be  no  legal  impediments  to  the  contrary," 

The  next  forty-one  articles  are  called  '  rights,  rules,  and  lib- 
erties concerning  judicial  proceedings.'  There  is  no  mention 
made  among  these  of  involuntary  servitude  as  a  punishment. 
Though  '  barbarous  and  unusual  punishments  '  are  prohibited, 
it  seems  not  to  have  been  taken  as  applying  to  whipping,  the 
pillory,  cropping  and  other  similar  inflictions,' 

Twenty  articles  contain  '  liberties  more  particularly  con- 
cerning the  freemen,'  Avhich  relate  to  the  civil  polity  of  the 
colony.  In  one  of  these  articles  it  is  enacted  that  '  no  prescrip- 
tion or  custom  may  prevail  to  establish  any  thing  morally  sinful 
by  the  word  of  God.'  (Laws,  Cam.  1675,  p.  126,)  '  Liberties 
of  women'  is  the  subject  of  two  articles  ;  'liberties  of  children' 

*  In  1681,  a  negro  who  had  hecn  convicted  of  arson,  was  publicly  burned  alive  in 
Boston;  this  was  the  old  common  law  punishment.  4  Blacks,  Comm.,  222.  In 
1755  a  man  and  a  woman,  negro  servants  of  Captain  John  Codman,  of  Charlestown, 
were  executed  under  sentence  of  the  Assizes,  for  poisoning  their  master;  the  woman 
was  burned,  Oliver's  Pur,  Commonwealth,  p.  84.  2  Elliot's  Hist.  New  E.,  187. 
The  crime  was  petit  treason  by  common  law,  and  to  be  drawn  and  burnt,  instead  of 
being  drawn  and  hanged,  was  "  the  usual  punishment  for  all  sorts  of  treasons  com- 
mitted by  those  of  the  female  sex,"  until  30  Geo.  Ill,,  c.  48,  4  BI.  Comm.,  204,  It 
would  seem  from  these  instances  that,  after  all,  the  courts  were  obliged  to  resort  to 
"  common  law  ''  to  find  out  what  punishments  were  not  "  barbarous  and  unusual," 


260  LAWS    OF    MASSACHUSETTS. 

of  four  articles.     It  is  enacted  in  four  articles,  entitled,  '  liber- 
ties of  servants.' 

Article  85.  "  If  any  servants  shall  flee  from  the  tyranny  and 
cruelty  of  their  masters  to  the  house  of  any  freeman  of  the  same 
town,  they  shall  be  there  protected  and  sustained,  until  due 
order  be  taken  for  their  relief ;  provided  due  notice  thereof  be 
speedily  given  to  their  masters  from  whom  they  fled,  and  the 
next  assistant  or  constable  where,  the  party  plying  is  harbored." 

Article  86.  "  No  servant  shall  be  put  off,  for  above  a  year,  to 
any  other,  neither  in  the  lifetime  of  their  master,  nor  after  their 
death  by  their  executors  or  administrators,  unless  it  be  by  con- 
sent of  authority  assembled  in  some  court  or  two  assistants." 

Article  87.  "  If  any  man  smite  out  the  eye  or  tooth  of  his 
man  servant  or  maid  servant,  or  otherwise  maim  or  much  dis- 
figure him,  unless  it  be  by  mere  casualty,  he  shall  let  them  go 
free  from  his  service,  and  shall  have  such  further  recompense  as 
the  court  shall  allow  him." 

Article  88.  "  Servants  that  have  served  diligently  and  faith- 
fully to  the  benefit  of  their  masters  seven  years,  shall  not  be 
sent  away  empty  ;  and  if  any  have  been  unfaithful,  negligent, 
or  unprofitable  in  their  service,  notwithstanding  the  good  usage 
of  their  masters,  they  shall  not  be  dismissed  till  they  have  made 
satisfaction  according  to  the  judgment  of  the  authorities." 

Three  articles  refer  to  '  liberties  of  foreigners  and  strangers.' 

Article  89.  ''  If  any  people  of  other  nations  j^rofessing  the 
true  christian  religion,  shall  flee  to  us  from  the  tyranny  or  op- 
pression of  their  persecutors,  or  from  famine,  wars  or  the  like 
necessary  or  compulsory  cause,  they  shall  be  entertained  and 
succored  among  us,  according  to  that  power  and  prudence  God 
shall  give  us." 

Article  91.  "  There  shall  never  be  any  bond  slavery,  villenage, 
or  captivity  amongst  us,  unless  it  be  lawful  captives  taken  in 
war,  and  such  strangers  as  willingly  seU  themselves  or  are  sold 
to  us.  And  these  shall  have  aU  the  liberties  and  christian 
usages  which  the  law  of  God,  established  in  Israel  concerning 
such  persons,  doth  morally  require.     This  exempts  none  from 


LAWS   OF    MASSACHUSETTS.  261 

servitude  who  shall  be  judged  thereto  by  authority."  (Laws. 
Cam.,  1675,  p.  10,  tit  Bond  Slavery.) 

Two  articles,  '  of  the  brute  creature,'  respecting  cruelty  to 
animals  and  certain  rights  of  pasturage.  Among  the  '  capital 
laws  '  in  the  remaining  articles  is  one.  Art,  94,  s,  10  :  'If  any 
man  stealeth  a  man,  or  mankind,  he  shall  surely  be  put  to 
death,'  with  marginal  reference  to  Exodus,  21,  16.  (Laws 
Camb.  1675,  p.  15.)' 

1652.2  "And  it  is  further  ordered  by  this  Courte  and  the 
authoritje  thereof,  that  all  Scotchmen,  negroes,  and  Indjans,  in- 
habiting with,  or  servants  to  the  English  *  *  shall  be  listed  and 
*  *  attend  traynings  as  well  as  the  English,"  &c. 

1656.  Ordered  by  the  Court,  &c.,  "  that  henceforth  no  ne- 
groes or  Indjans,  although  servants  to  the  English,  shall  be 
armed  or  permitted  to  trajne." — Militia  Kegulations  in  Mass. 
Kecords  IV.  1st  Part,  pp.  86,  397. 

1659.  The  general  court  empowered  the  treasurers  of  the 
several  counties  to  sell  certain  Quakers,  who  refused  to  pay  fines 
"  to  any  of  the  English  nation  at  Virginia  and  Barbadoes." — 2 
Hazard's  Coll.  p.  563. ^ 

1660.  May.  "  This  court,  &c.,  do  declare  and  order  that  no 
man  whatsoever  shall  be  admitted  to  the  freedom  of  this  body 
poHtick,  but  such  as  are  members  of  some  church  of  Christ  and 


'  A  transaction  deserves  mention  in  this  place  as  indicative  of  the  public  sentiment 
at  this  period,  which  "  has  been  magnified  by  too  precipitate  an  admiration  into  a 
protest  on  the  part  of  Massachusetts  against  the  African  slave  trade."  1  Hild.  p.  282. 
It  was  discovered  in  the  year  1 645,  that  two  negroes  who  had  been  brought  to  Bos- 
ton in  a  vessel  which  had  sailed  thence,  '  bound  to  Guinea  to  trade  for  negroes,'  had 
not  been  bought  there  in  the  regular  course  of  traffic,  but  had  been  kidnapped  on  the 
coast  of  Africa,  and  that  at  the  same  time  the  crew,  with  others  from  some  London 
vessels,  had  on  a  Sunday  attacked  an  African  village,  and  killed  many  of  the  inhabi- 
tants. The  master  and  crew  were  charged  with  the  offences  of  murder,  man-stealing, 
and  Sabbath-breaking.  The  magistrates  were  not  sufficiently  clear  as  to  their  au- 
thority to  punish  crimes  committed  on  the  coast  of  Africa ;  but  they  ordered  the  ne- 
groes to  be  sent  back  at  the  public  charge,  as  having  been  procured  not  honestly  by 
purchase,  but  by  the  unlawful  act  of  kidnapping,  and  by  a  letter  'expressing  the  in- 
dignation of  the  General  Court,'  they  bore  '  witness  against  the  heinous  offence  of  man- 
stealing.'  2  Winthrop,  243  and  Appendix  M.  IBanc.  174.  Mass.  Rec.  II ,  pp. 
136,  168. 

'  In  1649,  a  penal  code  was  compiled  and  printed,  no  copy  of  which,  it  is  believed, 
is  now  in  Existence.     See  I  Hildr.  368. 

'  This  order  was  never  carried  into  effect,  no  ship-master  being  found  willing  to 
carry  them  away. — 1  Sewel's  Hist.  Quakers,  Svo.  p.  278. 


262  LAWS    OF    MASSACHU8ETTR. 

in  full  communion,  which  they  declare  to  be  the  trae  intent  of 
the  ancient  law,"  [anno  1631.] — Charters,  &c.,  p.  117. 

1664.  "  In  answer  to  that  part  of  his  Majesty's  letter,  of 
June  28,  1662,  concerning  admission  of  freemen  ;  this  Court 
doth  declare  that  the  law  prohibiting  all  persons,  except  mem- 
bers of  churches,  and  that  also  for  allowance  of  them  in  any 
county  court,  are  hereby  repealed,  and  that  all  Englishmen  pre- 
senting a  certificate  under  the  hands  of  the  minister  of  the  place 
where  they  dwell,  that  they  are  orthodox  in  religion  and  not 
vicious  in  their  lives,  and  also  a  certificate  under  the  hands  of 
the  selectmen,  &c.,  that  they  are  freeholders,  &c.,  rateable,  &c., 
or  that  they  are  in  full  communion  with  some  church  among 
us  ;  if  they  desire  to  be  freemen  they  shall  be  allowed  the  privi- 
lege to  have  such  their  desire  propounded  and  put  to  vote  for 
acceptance  to  the  freedom  of  the  body  politick,  by  the  suffrage  of 
the  major  part,  according  to  the  rules  of  our  patent." — Charters, 
&c.,  p.  117,  IV.  Mass.  Kec.  Part  II.  p.  117,  and  p.  56: 

The  colonies  of  New  Plymouth  and  Massachusetts  Bay  be- 
came, in  the  year  1692 '^j  united  into  the  Province  of  Massa- 
chusetts Bay. 

1698,  Laws  of,  c.  6. — A  law  forbidding  to  trade  or  truck 
with  "  any  Indian,  molato,  or  negro  servant  or  slave,  or  other 

'  See  the  king's  letter  in  IV.  Mass.  Rec.  2d  part,  p.  164-6,  which  enjoins  "that 
all  freeholders  of  competent  estate,  not  vicious  in  conversation  and  orthodox  in  religion 
(though  of  different  persuasions  concerning  church  government)  may  have  their  votes 
in  the  election  of  all  officers. " 

^  The  charter  provided  for  election  of  deputies  to  the  general  court  "  by  the  major 
part  of  the  freeholders  and  other  inhabitants  of  the  respective  towns  or  places  who 
shall  be  present  at  such  elections."  "  No  freeholder  or  other  person"  to  have  a  vote, 
who  should  not  have  a  certain  freehold  estate.  "  It  contained  a  clause  that  all  and 
every  of  the  king's  subjects  "  which  shall  go  to  and  inhabit  within"  the  province,  and 
their  children  born  there,  should  have  the  liberties,  &c.,  of  subjects  in  other  parts  of 
the  empire.  The  governor  and  general  court  were  vested  with  power  to  enact  laws, 
"  so  as  the  same  be  not  repugnant  or  contrary  to  the  laws  of  this  our  realm  of  Eng- 
land."— Charters,  &c.,  p.  18. 

Charters,  &c.,  p.  213,  229,  gives  enactments  as  of  1692,  continuing  the  laws  of 
Massachusetts  and  Plymouth  colonies  until  the  next  year,  founded  on  a  doubt  as  to 
the  continuance  of  the  local  law.  (See  2  Hutch,  p.  20,)  and  p.  214,  An  act  setting 
forth  general  privileges,  one  of  which  is,  "  no  freeman  shall  be  taken  and  imprisoned, 
or  be  disseized  of  his  freehold  or  liberties,  or  his  free  customs,  &c.,  «&c.,  but  by  the 
lawful  judgment  of  his  peers,  or  the  law  of  this  pro\'ince."  Also  p.  224,  An  act  for 
the  letter  securing  of  the  liberty  of  the  subject  and  for  prevention  of  illegal  imprisonment. 
These  acts,  with  some  others  there  given,  do  not  appear  in  the  collections  of  the  Pro- 
vince laws,  printed  in  1726  and  1759 ;  they  appear  to  have  been  disallowed  by  the 
Crown.     See  1  Holmes'  An,  440,  ru     I  Hildr.  167. 


LAWS    OF    MASSACHUSETTS.  263 

known  dissolute,  lewd,  and  disorderly  person,  of  whom  there  is 
just  cause  of  suspicion,"  and  such  persons  to  be  punished  by 
whipping  for  so  trading. 

1703  I,  Laws  of,  c.  2. — An  act  restraining  the  emancipation 
of  "  molatto  or  negro  slaves,"  without  giving  security  to  the 
town  that  they  should  not  become  chargeable,  c.  4.  An  act 
that  Indians,  mulattoes,  and  negroes  shall  not  be  abroad  at  night 
after  nine  o'clock,"  &c. — Charters,  &c.,  p.  745,  746. 

1705,  Laws  of,  c.  6. — Act  for  the  better  preventing  of  a 
spurious  and  mixt  issued  Enacts  that  a  negro  or  molatto  man 
committing  fornication  with  "  an  English  woman,  or  a  woman 
of  any  other  Christian  nation,"  shall  be  sold  out  of  the  province. 
An  "  English  man,  or  man  of  any  other  Christian  nation,"  com- 
mitting fornication  with  a  negro  or  molatto  woman,  to  be 
whipped,  and  the  woman  sold  out  of  the  province.  "  Any  negro 
or  mulatto  presuming  to  smite  or  strike  an  English  person,  or 
of  other  Christian  nation,"  to  "  be  severely  whipped."  None  of 
her  Majesty's  English  or  Scottish  subjects,  nor  of  any  other 
Christian  nation  within  this  province,  "  shall  contract  matrimony 
with  any  negro  or  mulatto,"  under  a  penalty  imposed  on  the 
person  joining  them  in  marriage,  "  No  master  shall  unreason- 
ably deny  marriage  to  his  negro  with  one  of  the  same  nation  ; 
any  law,  usage,  or  custom  to  the  contrary  notwithstanding." 
All  negroes  imported  are  to  be  entered  and  duty  paid,  a  draw- 
back to  be  allowed  on  exportation. — Charters,  &c.,  p.  747. 

1707,^  Laws  of,  c.  2. — An  act  for  the  regulating  of  free  ne- 
groes, &c.,  enacts  that  they  do  service  "  in  repairing  the  high- 


'  In  1701,  the  town  of  Boston  instructed  its  representatives  "to  put  a  period  to 
negroes  being  slaves." — 3  Banc.  408. 

^  In  a  treatise  by  C.  C.  Jones,  on  the  Religious  Instruction  of  the  negroes  in  the 
U.  S. :  Savannah,  1842,  p.  35,  are  extracts  from  "  Entryes  for  Publications  (of  mar- 
riage) within  the  town  of  Boston,"  date,  1707,  1710,  publications  of  negroes,  all  as  of 
certain  masters  there  named." 

'  Winchendon  v.  Hatfield  (1808),  4  Mass.  R.  127-8,  Parsons,  C.  J.  "  Slavery  was 
introduced  into  this  country  soon  after  its  first  settlement.  The  slave  was  the  property 
of  the  master,  subject  to  his  orders,  and  to  reasonable  correction  for  misbehavior.  If 
the  master  was  guilty  of  a  cruel  or  unn^asonable  castigation  of  his  slave,  he  was  liable 
to  be  punished  for  the  breach  of  the  peace,  and,  I  believe,  the  slave  was  allowed  to 
demand  sureties  of  the  peace  against  a  violent  and  barbarous  master.  Under  these 
regulations,  the  treatment  of  slaves  was  in  general  mild  and  humane,  and  they  suf- 
fered hardships  not  greater  than  hired  servants." 


264  LAWS    OF    MASSACHUSETTS. 

ways,  cleansing  the  streets,  or  other  service  for  the  common  benefit 
of  the  place,"  equivalent  to  the  service  of  others  in  training.  In 
case  of  alarms,  that  they  shall  attend  on  parade  and  do  services 
at  the  direction  of  the  comraandins  officer.  That  free  negroes 
and  mulatto  shall  be  fined  for  harbouring  or  entertaining  "  any 
negro  or  mulatto  servant,"  without  consent,  &c.  Punishment 
is  prescribed,  by  commitment  to  the  House  of  Correction.* 

'  Between  the  years  1767  and  1773,  several  unsuccessful  attempts  were  made  to 
procure  legislative  acts  against  the  slave  trade,  an  account  of  whicli  is  given  by  Dr. 
Belknap  in  his  letter  to  Judge  Tucker,  vol.  iv.  Mass.  Hist.  Soc.  Coll.  p.  201.  The 
latest  attempts  appear  to  have  failed  from  the  opposition  of  the  governor,  acting  under 
his  instructions.  Dr.  Belknap  adds,  "  The  blacks  had  better  .success  in  the  judicial 
courts.  A  pamphlet  containing  the  case  of  a  negro  who  had  accompanied  his  master 
from  the  West  Indies  to  England,  and  bad  there  sued  for  and  obtained  his  freedom, 
was  reprinted  here,  and  this  encouraged  several  negroes  to  sue  their  masters  for  their 
freedom  and  for  recompense,  for  their  service  after  they  had  attained  the  age  of 
twenty-one  years.  The  first  trial  of  this  kind  was  in  1770.  The  negroes  collected 
money  among  themselves  to  carry  on  the  suit,  and  it  terminated  favorably  for  them. 
Other  suits  were  instituted  between  that  time  and  the  revolution,  and  the  juries  inva- 
riably gave  their  verdict  in  favor  of  liberty.  The  pleas  on  the  part  of  the  masters 
were,  that  the  negroes  were  purchased  in  open  market,  and  bills  of  sale  were  produced  in 
evidence;  that  the  laws  of  the  province  recognised  slavery  as  existing  in  it,  by  declar- 
ing that  no  person  .should  maimmit  his  slave  without  giving  bond  for  his  maintenance, 
&c.  On  the  part  of  the  blacks  it  was  pleaded  tliat  the  royal  charter  expressly  de- 
clared all  persons  born  or  residing  in  the  province  to  be  free  as  the  king's  subjects  in 
Great  Britain ;  that  by  the  laws  of  England  no  man  could  be  deprived  of  his  liberty 
but  by  the  judgment  of  his  peers ;  that  the  laws  of  the  province  respecting  an  evil 
existing,  and  attempting  to  mitigate  or  regulate  it,  did  not  authorize  it,  and,  on  some 
occasions,  the  plea  was,  that  though  the  slavery  of  the  parents  be  admitted,  yet  no  dis- 
ability of  that  kind  could  descend  to  tht-  children. 

"  During  the  revolution-war,  the  pnhlick  opinion  was  so  strongly  in  favor  of  the 
abolition  of  slavery,  that  in  some  of  the  country  towns  votes  were  passed  in  town- 
meetings,  that  they  would  have  no  slaves  among  them,  and  that  they  would  not  exact 
of  masters  any  bonds  for  the  maintenance  of  liberated  blacks,  if  they  should  become 
incapable  of  supporting  themselves." 

-»-  In  a  paper  by  Emory  Wasliburn,  Esq.,  read  before  the  Mass.  Hist,  Soc.  April,  1857, 
(Boston  Daily  Advertiser,  July  8,  1857.)  the  title  of  the  case  above  mentioned  is  given 
as  James  v.  Lechmere.  "  The  term  at  whicli  the  judgment  in  this  action  was  ren- 
dered, was  held  in  Suffolk,  Oct.  31,  1769.  The  action  was  commenced  in  the  Inferior 
Court  of  Common  Pleas,  May  2,  1769,  and  the  plaintiff  declared  in  trespass  for  as- 
sault and  battery,  and  imprisoning  and  holding  the  plaintiff  in  servitude  from  April  11, 
1758,  to  the  date  of  the  wTit.  Judgment  in  the  lower  court  was  rendered  for  the  de- 
fendant. The  plaintiff  appealed,  and  in  the  superior  court  the  defendant  was  defaulted, 
and  judgment  was  rendered  for  an  agreed  sum  with  costs."  Mr.  Washburn  says  also ; 
"  If  this  were  the  place  for  speculation,  I  should  feel  myself  warranted  in  assuming 
that  our  courts,  as  early  as  1770,  considered  the  attempt  to  hold  any  person  not  cap- 
tured and  brought  and  sold  here,  but  born  here,  as  a  slave,  was  not  justified  by  law, 
although  he  might  be  the  child  of  a  slave."  But  in  Winchendon  v.  Hatfield, 
4  Mass.  R.  129,  the  court  says :  "  It  is  very  certain  that  the  general  practice  and 
common  usage  had  been  opposed  to  the  opinion  that  a  negro  born  in  the  State,  before 
the  present  constitution,  was  free,  though  born  of  a  female  .slave."  And  see  Journals 
of  Mass.  Provincial  Congress,  pp.  29,  302,  a  resolution  of  the  Mass.  Committee  of 
Safety,  of  May  20,  1775,  respecting  the  impropriety  of  enlisting  slaves  in  the  anny ; 
read  in  the  congress,  June  8,  but  no  action  taken  on  it. 


LAWS   OF    NEW   HAMPSHIRE.  265 

1712,  Laws  of,  c.  6. — An  act  prohibiting  the  importation  or 
bringing  into  this  province  any  Indian  servants  or  slaves.  The 
preamble  recites  the  bad  character  of  "  Indians  and  other 
slaves,"  the  danger  of  their  increase,  and  the  "  discouragement 
to  the  importation  of  white  Christian  servants  ;"  enacts  "  that 
all  Indians,  male  and  female,  of  whatever  age  soever,  imported 
or  brought  into  this  province  by  sea  or  land  from  any  part  or 
place  whatsoever,"  shall  be  forfeited  to  her  majesty  for  the 
support  of  government,  unless  importers  give  security  to  remove 
them. — Charters,  &c.,  p.  748. 

§  221.    Legislation  of  New  Hampshire. 

The  colonial  government  of  Massachusetts  had  claimed  and 
exercised  jurisdiction  over  the  settlements  within  the  limits  of 
the  present  State  of  New  Hampshire  until  the  year  1679,  when 
a  separate  provincial  government  was  constituted  under  the 
royal  commission. •  The  first  legislative  assembly  declared  "  the 
general  laws  and  liberties  of  this  province,"  and  a  code  of  capi- 
tal laws  compiled  from  the  Massachusetts  code  ;  of  which  the 
twelfth  is,  "  if  any  man  stealeth  mankind  he  shall  be  put  to 
death  or  otherwise  grievously  punished." — 1  Belknap's  Hist.  N. 
H.  app.  no.  26.  This  code  "  was  rejected  in  England  as  '  fanati- 
cal and  absurd.'  " — 1  Hildr.  p.  501.'' 

'  The  claim  to  the  soil — antagonistical  to  that  of  Massachusetts — was  founded  on 
Mason's  Patent  from  the  council  of  Plymouth,  England.  Whatever  legislative  power 
was  derived  from  it  was  restructed  by  the  usual  condition  of  conformity  to  the  laws 
of  England.  Local  governments,  founded  on  the  written  compacts  of  the  settlers,  had 
been  formed  at  Exeter  and  Dover.  1  Belknap's  N.  H.  app.  no.  12,  13.  By  the  com- 
mission to  Cutts  and  others,  1679,  a  legislative  Assembly  was  allowed;  the  voters  for 
delegates  to  be  determined  by  the  President  and  Council,  and  when  "  writs  were  is- 
sued for  calling  a  general  Assembly,  the  persons  in  each  town  who  were  judged  quali- 
fied to  vote  were  named  in  the  writs,"  1  Belknap's  Hist.  N.  H.  p.  91.  The  legislative 
power  was  not  expressly  limited,  though  subject  to  the  royal  disallowance  of  its  enact- 
ments. It  was  provided  in  the  grant  of  judicial  power — "  so  alwa3's  that  the  form  of 
proceedings  in  such  cases  and  the  judgments  thereupon  to  be  given  be  as  consonant 
and  agreeable  to  the  laws  and  statutes  of  this  our  realm  of  England,  as  the  present 
state  and  condition  of  our  subjects  inhabiting  within  the  limits  aforesaid,  and  the  cir- 
cumstances of  the  place  will  admit."  The  later  commissions  provide  that  the  local 
shall  "  not  be  repugnant,  but,  as  near  as  may  be,  agreeable  to  the  laws  and  statutes  of 
this  our  realm  of  England."  By  tlie  commission  to  Wentworth,  17G6,  the  deputies  to 
the  Assembly  are  to  be  chosen  by  the  "  major  part  of  the  freeholders."  See  the  com- 
missions in  N.  Hamp.  Prov.  Laws,  edit.  1771,  Story's  Comm.  §§  78 — 81. 

"  In  a  journal  given  in  Belknap's  Hist.  N.  H.  app.  no.  44,  as  of  1683,  "March  14. 


266  LAWS   OF    NEW    HAMPSHIRE. 

1714,  were  passed — An  act  for  prevent ing  men's  sons  or 
servants  absenting  themselves  from  their  i^arents  or  master's  ser- 
vice without  leave.  N.  H.  Prov.  Laws,  c.  28.  An  act  to  pre- 
vent disorders  in  the  night,  Prov.  Laws,  c.  39. — "  Whereas  great 
disorders,  insolencies  and  burglaries  are  ofttimes  raised  and  com- 
mitted in  the  night  time  by  Indian  negro  and  molatto  servants 
and  slaves,  to  the  disquiet  and  hurt  of  her  Majesty's  good  sub- 
jects ;  for  the  prevention  whereof  Be  it,  &c. — that  no  Indian, 
negro  or  molatto  servant  or  slave  may  presume  to  be  absent 
from  the  families  where  they  respectively  belong,  or  be  found 
abroad  in  the  night  time  after  nine  o'clock  ;  unless  it  be  upon 
errand  for  their  respective  masters,"  &c. 

An  act  prohibiting  the  importation  or  bringing  into  this 

Province  any  Indian  servant  or  slaves.  Prov.  L.  c.  41 — 
"  Whereas  divers  conspiracies,  outrages,  barbarities,  murders, 
burglaries,  thefts,  and  other  notorious  crimes  and  enormities,  at 
sundry  times  have  of  late  been  perpetrated  and  committed  by 
Indians  and  other  slaves  within  several  of  her  Majesty's  planta- 
tions in  America,  being  of  a  malicious,  surly,  and  revengeful 
spirit  and  very  ungovernable,  the  over  great  number  and  in- 
crease whereof  within  this  province  is  likely  to  prove  of  fatal 
and  pernicious  consequence  to  her  Majesty's  subjects  and  in- 
terest here,  unless  speedily  remedied,  and  is  a  discouragement  to 
the  importation  of  Christian  servants  :  Be  it,  &c.,  that  from 
and  after  the  publication  of  this  act,  all  Indians,  male  and  fe- 
male, of  what  age  soever,  that  shall  be  imported  or  brought 
into  this  j^rovince  by  sea  or  land  ;  every  master  of  ship  or  other 
vessel,  merchant  or  person,  importing  or  bringing  into  this  pro- 
vince such  Indians  male  or  female,  shall  forfeit  to  her  Majesty 
for  the  support  of  the  government,  the  sum  of  ten  pounds  per 
head,  to  be  sued  for  and  recovered  in  any  of  her  Majesty's  courts 


The  governor  told  Mr.  Jaffrey's  negro  he  might  go  from  his  master,  he  would  ctear 
him  under  his  hand  and  seal ;  so  the  fellow  no  more  attends  hfs  master's  concerns." 

'  The  royal  instructions  dated  June  30,  1761,  to  B.  Wentworth,  the  Provincial 
Governor,  contained  a  clause, — "  You  are  not  to  give  your  assent  to,  or  pass  any  law 
imposing  duties  on  negroes  imported  into  New  Hampshire."  Gordon's  Hist,  of  Am. 
Rev.  vol.  v.,  letter  2. 


LAWS    OF    CONNECTICUT.  267 

of  record,  by  action,  bill,  complaint   or  otherwise  :  to  be  paid 
into  the  treasury  for  the  use  aforesaid." 

1718.  Act  for  restraining  inhuman  severities.  Prov.  L.  c.  70, 
8.  1 — "  For  the  prevention  and  restraining  of  inhuman  severities 
which  by  evil  masters  or  overseers,  may  be  used  towards  their  Chris- 
tian servants,  that  from  and  after  the  publication  hereof,  if  any 
man  smite  out  the  eye  or  tooth  of  his  man  servant  or  maid  ser- 
vant, or  otherwise  maim  or  disfigure  them  much,  unless  it  be  by 
mere  casualty,  he  shall  let  him  or  her  go  free  from  his  service, 
and  shall  allow  such  further  recompense  as  the  court  of  quarter 
sessions  shall  adjudge  him.  2.  That  if  any  person  or  persons 
whatever  in  this  province  shall  wilfully  Mil  his  Indian  or  negro 
servant  or  servants  he  shall  be  punished  with  death." 

§  222.  Legislation  of  Connecticut. 

The  civil  polity  of  this  colony  originated  in  that  of  the 
two  several  colonies  of  Hartford  and  of  New  Haven.  In  January, 
1639,  a  constitution  of  government  was  adopted  for  the  Hart- 
ford colony,^  by  those  who  mutually  recognized  each  other  as 
the  adult  male  free  inhabitants  of  the  settlements  or  townships 
of  Hartford,  Windsor  and  Wethersfield,  agreeing  "in  all  civil 
affairs  to  be  governed  according  to  such  laws  as  should  be  made 
agreeably  to  the  constitution  they  were  then  about  to  adopt," 

'  1 775,  Kov.  3.  Resolution  of  Congress  recommending  the  revolutionary  Convention 
at  Exeter  (representing  one  hundred  and  two  towns)  to  call  "  a  full  and  free  represen- 
tation of  the  people,'  and  that  these  representatives  may  establish  such  form  of  gov- 
ernment, &c.  1  Belknap's  N.  H.  pp.  357,  359,  361,-2.  1776,  Jan.  5,  vote  of  the 
Convention  at  Exeter,  "  that  this  Congress  take  up  civil  government  for  this  colony, 
in  the  manner  and  form  following,"  &;c.,  L.aws,  1780.  Coll.  N.  H.  Hist.  Sec.  IV.,  p. 
150.     There  is  no  declaration  of  private  rights. 

1776,  June  15.  The  Council  and  Assembly  declared  New  Hampshire  an  inde- 
pendent State.  1  Bel.  p.  367. 

'  The  origin  of  the  local  government  and  the  progress  of  legislation  in  Connec- 
ticut is  sketched  in  the  advertisevient  to  the  Public  Statute  Laws  of  the  State  of  Conn., 
publ.  Hartford,  1808.  The  towns  of  Hartford,  Windsor  and  Wethersfield  were  first 
settled  by  emigrants  from  Massachusetts,  the  general  court  having  in  the  year  163G 
issued  to  Roger  Ludlow  and  others,  a  commission  investing  them  with  legislative  and 
judicial  powers  for  one  year  in  the  new  plantations,  (intended  to  be  within  the  limits 
and  jurisdiction  of  Massachusetts,)  and  authorizing  them  to  convene  the  inhabitants, 
if  necessary,  to  exercise  these  powers  in  General  Court.  This  commission  was  never 
renewed,  but  the  persons  named  therein  acted  as  magistrates  until  January,  1639. 
See  also  records  of  the  colony,  published  by  the  State,  1850.  Compare  the  remark  in 
note  2,  page  121. 


268  LAWS    OF    CONNECTICUT. 

and,  "  in  cases  in  which  there  was  no  express  law  established, 
to  be  governed  by  the  Divine  word."  The  freemen  of  the  colo- 
ny, or  those  having  the  elective  franchise,  were  to  be  such  as 
had  been  received  members  of  the  several  towns,  by  a  majority 
of  the  inhabitants. 

In  June,  of  the  same  year,  a  constitution  of  government  was 
adopted  by  the  settlers  at  New  Haven.'  The  Scriptures  were 
received  as  having  the  authority  of  law  in  the  absence  of  legis- 
lation.^ Only  members  of  the  churches  within  the  jurisdiction, 
could  be  freemen  or  electors.  At  Hartford,  in  April  of  the  same 
year,  the  first  law  was  passed,  being  a  declaration  or  bill  of 
rights,  which  is  in  nearly  the  same  words  as  the  preamble  and 
first  article  of  the  Massachusetts  Fundamentals  of  1641.  This 
bill  of  rights  is  repeated  in  the  commencement  of  every  revision 
of  the  colony  laws.^ 

1650. — By  order  of  the  General  Court  of  Hartford,  &c.,  a  di- 
gest of  the  statutes  was  "  copied  by  the  Secretary  into  the  book 
of  public  records,"  which  is  frequently  referred  to  in  later  stat- 
utes as  the  code  of  1650.^ 

In  this  code  under  the  title  Indians,  the  lawfulness  of  the 
slavery  of  both  Indians  and  negroes  is  recognized  by  the  gen- 
eral court,  adopting  in  terms  a  "  conclusion  "  of  the  Commis- 
sioners of  the  United  Colonies  of  New  England,  dated  Sept.  5, 
1646.     (1  Records,  531.)'     This  is  not  found  in  the  revised 

^  Printed  with  the  code  of  1650,  hy  Andrus  &  Judd,  1833,  18mo.  The  New  Ha- 
ven colonists  came  directly  from  England  in  the  year  1638  ;  they  had  no  patent  from 
the  council  in  Plymouth,  in  England,  for  New  England.  The  temtory  of  Connecti- 
cut had  been  granted  by  a  patent  then  held  by  the  Lord  Say  and  Scale,  and  others. 

'  It  is  said  that  about  the  year  1750,  the  Hebrew  lex  talionis  was  applied  under 
this  enactment,  in  the  case  of  a  negro  slave  for  the  mutilation  of  his  master's  son. 
Peter's  Hist  Conn.,  p.  83. 

'^The  reference  to  the  word  of  God  is  thus  modified,  "  or  in  case  of  the  defects  of 
a  law  in  any  particular  case,  by  some  clear  and  plain  rule  of  the  word  of  God,  in 
which  the  whole  court  shall  concur." 

■*  Col.  Records  of  Conn.,  vol.  I.,  p.  509,  563.     See  abstract  in  1  Hildr.  371 . 

'  1643,  May. — A  confederacy  to  be  known  as  the  United  Colonies  of  New  England 
was  entered  into  at  Boston  by  delegates  from  Plymouth,  Connecticut  and  New  Haven, 
and  the  General  Court  of  Massachusetts.  2  Hazard,  1 — 6.  Among  the  articles  of 
agreements,  the  eighth  is  as  follows : 

[a]  "  It  is  also  agreed  that  the  commissioners  for  this  confederation,  hereafter  at 
their  meetings,  whether  ordinary  or  extraordinary,  as  they  may  have  commission  or 
opportunity,  do  endeavor  to  frame  and  estabhsh  agreements  and  orders  in  general 
cases  of  a  civil  nature,  wherein  aU  the  plantations  are  interested,  for  preserving  peace 
among  themselves,  and  preventing  as  much  as  may  be,  all  occasions  of  war,  or  differ- 


LAWS   OF    CONNECTICUT.  269 

laws  of  1715,  which  contain  many  provisions  "for  the  well 
ordering  of  the  Indians." 

ences  with  others,  as  about  free  and  speedy  passage  of  justice  in  each  jurisdiction  to 
all  the  confederates  equally,  as  to  their  own,  receiving  those  that  remove  from  one 
plantation  to  another  without  due  certificates,  how  all  the  jurisdictions  may  carry  it 
towards  the  Indians,  that  they  neither  grow  insolent  nor  be  injured  without  due  satis- 
faction, lest  war  break  in  upon  tlie  confederates  through  miscarriages,  [b.]  It  is 
also  agreed  that  if  any  servant  run  away  from  his  master  into  any  of  these  confederate 
jurisdictions,  that  in  such  case,  upon  certificate  of  one  magistrate  in  the  jurisdiction 
oiat  of  which  the  said  servant  fled,  or  upon  other  due  proof,  the  said  servant  shall  be 
delivered  either  to  his  master  or  any  other  that  pursues  and  brings  such  certificate  or 
proof,  [c]  And  that  upon  the  escape  of  any  prisoner  or  fugitive  for  any  criminal 
cause,  whether  breaking  prison  or  getting  from  the  officer,  or  otherwise  escaping,  upon 
the  certificate  of  two  magistrates  of  the  jurisdiction  out  of  which  the  escaped  made, 
that  he  was  a  prisoner  or  such  offender  at  the  time  of  the  escape,  the  magistrate  or 
some  of  them,  where  for  the  present  the  said  prisoner  or  fugitive  abideth,  shall  forth- 
with grant  such  warrant  as  the  case  will  bear  for  the  apprehending  of  any  such  per- 
son and  the  delivery  of  him  into  the  hand  of  the  officer  or  other  person  who  pursueth 
him  ;  and  if  there  be  help  required  for  the  safe  returning  of  any  such  offender, 
then  it  shall  be  granted  unto  him  that  craves  it,  he  paying  the  charges  thereof." 

The  same  provisions  are  incorporated  into  the  seventh  article  of  the  confederation, 
renewed  in  1672.  (2  Haz.  p.  523.)  The  preliminary  agreement  [a]  is  however  dif- 
ferently worded.  "  It  is  also  agreed  that  the  commissioners  for  this  confederation 
hereafter  at  their  meetings,  whether  ordinary  or  extraordinary,  as  they  may  have 
commission  or  opportunity,  may  consult  of  and  propose  to  the  several  general  courts, 
to  be  by  them  allowed  and  established,  such  orders  in  general  cases,"  &c.,  the  rest  as 
in  the  article  of  1643. 

In  certain  instructions  given  by  the  commissioners,  5th  Sept.,  1646,  (2  Hazard,  p. 
63,)  after  reciting  the  conduct  of  certain  Indians,  is  said  "it  was  therefore  concluded, 
that  in  such  cases  the  magistrates  of  any  of  the  jurisdictions,  might  at  the  plaintiflTs 
charge,  send  some  convenient  strength  of  English,  and,  according  to  the  nature  and  value 
of  the  offence  and  damage,  seize  and  bring  away  any  of  that  plantation  of  Indians  that 
shall  entertain,  protect,  or  rescue  the  offender,  though  it  should  be  in  another's  jurisdic- 
tion, when,  through  distance  of  place,  counsel  or  direction  cannot  be  had,  after  notice  and 
due  warning  given  them  as  abettors,  or  at  least  accessory  unto  the  injury  and  dam- 
age done  to  the  English,  only  women  and  children  to  be  sparingly  seized,  unless  known 
to  be  some  way  guilty.  And  because  it  will  be  chargeable  keeping  Indians  in  prison, 
and  if  they  should  escape,  they  are  like  to  prove  more  insolent  and  dangerous  after,  it 
was  thought  fit  that,  upon  such  seisure,  the  delinquent  or  satisfaction  be  again  de- 
manded of  the  sagamore  or  plantation  of  Indians  guilty  or  accessory  as  before,  and  if 
it  be  denied,  that  then  the  magistrates  of  the  jurisdiction  deliver  up  the  Indians  seized 
to  the  party  or  parties  endamaged,  either  to  serve  or  to  be  shipped  out  and  exchanged 
for  negroes  as  the  cause  will  justly  bear." 

In  a  correspondence,  2  Hazard,  pp.  57,  69,  between  Governor  Kieft  of  New  Neth- 
erlands and  the  Commissioners  for  the  United  N.  E.  Colonies,  1646,  the  latter  claim, 
"an  Indian  captive,  liable  to  publicke  punishment,  fled  from  her  master  at  Harford, 
is  entertained  in  your  house  at  Harford,  and  though  required  by  the  magistrate  is  un- 
der the  hands  of  your  agent  there  denyed,  and  we  hcare  she  is  either  marryed  or 
abused  by  one  of  your  men ;  such  a  servant  is  parte  of  her  master's  estate,  and  a 
more  considerable  part  than  a  beast :  our  children  will  not  longe  be  secure  if  this  be 
suffered."  The  answer  of  Kieft  is, — "  Soe  far  as  concernes  the  Barbarian  handmaide, 
although  it  be  apprehended  by  some  that  she  is  no  slave,  but  a  free  woman,  because 
she  was  neither  taken  in  war  nor  bought  with  price,  but  was  in  former  time  placed 
with  me  by  her  parents  for  education,  &c." 

In  the  inter-colonial  treaty  of  Sept.  19,  1650,  it  is  agreed  that  the  same  way  and 
course  shall  be  observed  betwixt  the  English  United  Colonies  and  the  Dutch,  within 
the  province  of  New  Netherlands,  as,  according  to  the  eighth  article  of  confederation  (of 
the  N.  E.  CoL,)  is  in  that  case  provided.     2  Hazard,  172. 


270  LAWS    OF    CONNECTICUT. 

Under  the  title  Masters,  Servants,  Sojourners,  servants  are 
forbidden,  under  penalty,  to  trade  without  permission  of  master, 
and  provision  is  made  for  their  recapture  by  public  authority  if 
running  away  ;  refractory  servants  are  to  be  punished  by  the 
extension  of  their  terms.  1  Records, '539,  among  the  Capital 
Laws,  10,  "If  any  man  stealeth  a  man  or  mankind  he  shall  be 
put  to  death,  Exodus  21,  26."  1  Records,  77.  The  preamble 
is  the  same  as  in  the  Massachusetts  Fundamentals. 

1660,  May  17.  At  a  court  held  at  Hartford — "  It  is  or- 
dered by  this  court,  that  neither  Indian  nor  negro  servants  shall 
be  required  to  traine,  watch  or  ward  in  this  Colonie."  1  Records, 
349. 

1662.  The  several  colonies  of  Hartford,  &c.,  and  of  New 
Haven,  became  united  under  one  government,  under  the  Char- 
ter for  Connecticut,  granted  by  Charles  II,' 

1677,  May  10.  At  a  court  of  Election  held  at  Hartford.— 
"  This  court,  for  the  prevention  of  those  Indians  running  away 
that  are  disposed  in  service  by  the  Authority,  that  are  of  the 
enemie  and  have  submitted  to  mercy,  such  Indians,  if  they  be 
taken,  it  shall  be  in  the  power  of  his  master  to  dispose  of  him 
as  a  captive  by  transportation  out  of  the  country,"  &c.  2  Rec- 
ords, 308. 

1708.  An  act  to  prevent  receiving  goods  from  slaves,  dhc, 
(Rev.  L.  of  1715,  p.  135.)  A71  act  for  punishing,  &c. — "  Where- 
as negro  and  mulatto  servants  and  slaves  are  very  apt  to  be 
turbulent,  and  often  quarrell  with  white  people,"  &c.,  enacts 
that  any  such,  disturbing  the  peace  and  offering  to  strike  any 
white  person,  shall,  on  conviction,  be  punished  with  whipping, 
&c.  (Rev.  L.  1715,  p.  138.) 

1711.  An  act  relating  to  slaves,  and  such  in  particidar  as 

'  By  this  the  freemen  of  the  colony  were  authorized  to  choose  new  associates,  a 
governor  and  legislative  assembly.  The  grant  of  legislative  power  is — "to  ordain  and 
establish  all  manner  of  wholesome  and  reasonable  Uiws,  &c.,  not  contrary  to  the  laws 
of  this  realm  of  England."  It  is  provided  that  "all  and  every  the  subjects  of  lis,  our 
heirs  or  successors,  which  shall  go  to  inhabit  within  the  said  colony,  and  every  of  their 
children  which  shall  happen  to  be  born  there,  or  on  the  seas  in  going  thither  or  return- 
in"'  from  thence,  shall  have  and  enjoy  all  liberties  and  immunities  of  free  and  natural 
subjects,  within  any  of  the  dominions  of  us,  our  heirs  and  successors,  to  all  intents, 
constructions  and  purposes  whatsoever,  as  if  they  and  every  of  them  were  born  within 
the  realm  of  England."     1  Trumbull,  2-49 ;  2  Records. 


LAWS    OF    CONNECTICUT.  271 

shall  happen  to  become  servants  for  time,  enacts  "  that  all  slaves 
set  at  liberty  by  their  owners,  and  all  negro,  mulatto,  and  Span- 
ish Indians,  who  are  servants  to  masters  for  time,  in  case  they 
shall  come  to  want  after  they  shall  be  so  set  at  liberty  or  the 
time  of  their  service  be  expired  " — they  shall  be  relieved  at  the 
cost  of  their  masters.     Rev.  L.  1715,  p.  164. 

1715, — the  date  of  a  revision  of  the  Laws  :  in  which,  an 
act  concerning  arrests  for  debt :  that  the  debtor,  "if  no  estate 
appear,  he  shall  satisfy  the  debt  by  service,  if  the  creditor  shall 
require  it,  in  which  case  he  shall  not  be  disposed  in  service  to 
any  but  of  the  English  nation,"  p.  5  of  Rev.  continued  in  the 
later  revisions.^ 

An  act  relating  to  freemen.  Persons  desiring  to  be- 
come "  freemen  of  this  corporation,"  having  a  certificate  of  the 
selectmen  that  they  are  persons  of  quiet  and  peaceable  behavior 
and  civil  conversation,  of  the  age  of  twenty-one  years,  and  free- 
holders— to  be  admitted  on  taking  the  oaths,  p.  40  of  Rev. 

A71  act  to  prevent  the  running  away  of  Indian  and 

negro  servants,  p.  87  of  Rev. 

An  act  prohibiting  the  importation  or  bringing  into 

this  colony  any  Indian  servants  or  slaves.  "  Whereas  divers 
conspiracies,  outrages,  barbarities,  murders,  burglaries,  thefts 
and  other  notorious  crimes,  at  sundry  times,  and  especially  of 
late,  have  been  perpetrated  by  Indians  and  other  slaves,  within 
several  of  his  Majesties  plantations  in  America,  being  of  a  ma- 
licious and  revengeful  spirit,  rude  and  insolent  in  their  beha\'iour 
and  very  ungovernable  ;  the  over  great  number  of  which,  con- 
sidering the  different  circumstances  of  this  colony  from  the 
plantations  in  the  islands,  and  our  having  considerable  numbers 
of  the  Indians,  natives  of  the  country,  within  and  about  us,  may 
be  of  pernicious  consequence  to  his  Majesties  subjects  and  inter- 
ests here  ;  unless  speedily  remedied," — enacts  "  all  Indians 
brought  into  this  colony,  to  be  disposed  of  or  sold  here,  to  be 
forfeited  to  the  treasury  of  the  colony  unless  the  importers  give 
security  to  re-export,"  p.  209  of  Rev. 

*  Mr.  Hildreth,  1  Hist.  U.  S.  372,  says  this  provision  is  in  the  code  of  1650. 


272  LAWS    OF    CONNECTICUT. 

1720.  An  act  to  prevent  such  as  have  made  their  escape 
from  Justice,  or  have  been  convicted  of  certain  crimes  in  other 
colonies  from,  making  their  abode  in  this  colony.  Reprint  1737, 
p.  258.  Continued  and  modified,  in  later  laws,  see  ed.  Laws 
1810,  p.  359,  note.     Rev.  1750,  p.  106  ;  1784,  p.  110. 

1723.  An  act  to  prevent  the  disorder  of  negro  and  Indian 
servants  and  slaves  in  the  night  season.     Reprint  1737,  p.  291. 

1725.  That  delinquents  under  penal  laws  may  be  "  disposed 
of  in  service  to  any  inhabitant  of  the  colony,"  to  defray  the  ex- 
pense of  their  prosecution.     Repr.  1737,  p.  314. 

1727.  An  act  requiring  masters  and  mistresses  of  Indian 
children  to  use  their  "  utmost  endeavours  to  teach  said  children 
to  read  English,  and  to  instruct  them  in  the  principles  of  the 
Christian  faith."     Same,  p.  339. 

1730.  A71  act  for  the  punishment  of  negro,  Indian,  and 
mulatto  slaves  for  speaking  defamatory  words.  To  be^punished, 
on  trial  before  a  justice,  by  whipping,  not  exceeding  forty  stripes ; 
"  and  the  said  slave,  so  convict,  shaU  be  sold  to  defray  aU  charges 
arising  thereupon  ;  unless  the  same  be  by  his  or  their  master  or 
mistress  paid  and  answered."     Same,  p.  375. 

1750.  An  act  to  prevent  such  persons  abiding,  and  hiding 
in  this  colony,  as  make  their  escape  from  Justice,  or  are  con- 
victed of  certain  crimes  in  other  colonies.  After  providing  for 
their  expulsion,  as  in  the  act  of  1720,  contains  a  provision, 
*'  that  if  any  such  person  or  persons  flying,  or  making  escape,  as 
aforesaid,  be  pursued  by  order  of  proper  authority,  from  any 
other  Government,  in  order  to  bring  him  or  them  to  justice,  he 
or  they  may  be  apprehended  by  order  of  the  authority  of  this 
Government.  And  if,  on  examination  and  enquiry  into  the 
matter,  it  shall  appear  such  person  or  persons  have  been  con- 
victed, as  aforesaid,  and  are  escaped,  or  are  flying  from  prosecu- 
tion as  aforesaid,  he  or  they  may  be  remanded  back  and  delivered 
to  the  authority  or  officers  from  whom  such  escape  is  made,  in 
order  that  due  and  condign  punishment  may  be  inflicted  on 
such  transgressors."     Rev.  of  1750,  p.  106. 

1774.  October.  Act  against  importation  of  slaves — "No 
Indian,  negro,  or  mulatto  slave  shall  at  any  time  hereafter  be 


LAWS   OF    RHODE   ISLAND.  273 

brought  or  imported  into  this  State,  by  sea  or  land,  from  any- 
place or  places  whatsoever,  to  be  disposed  of,  left  or  sold,  within 
this  State/" 

1776,  October.  The  charter  of  1662  made  the  constitution 
of  the  State  of  Connecticut,'  and  its  sovereignty  declared. 
Laws  1784,  p.  1. 

§  223.  Legislation  of  Khode  Island. 

The  earliest  legislation  of  a  distinct  colonial  character,  with- 
in the  limits  of  the  present  State,  is  that  of  an  Assembly  con- 
sisting of  the  collective  freemen  of  the  various  settlements  or 
so  called  towns,  then  known  as  the  "  Providence  Plantations  ;" 
convened  at  Portsmouth,  in  Khode  Island,  May  19,  20,  21  ; 
1647.  These  "  Acts  and  Orders"  contain  provisions  in  the  na- 
ture of  private  law,  though  embodied  with  declarations  of  pub- 
lic law,  or  political  constitution.  Among  these  the  following 
may  be  noted  as  particularly  connected  with  the  subject  of  this 
chapter  :* 

'  See  Jackson  v.  Bulloch,  12  Conn.  Rep.  42,  for  a  judicial  exposition  of  the  history 
of  slavery  in  the  colony  and  State,  also  Reeves'  Domestic  Relations,  340. 

*  In  view  of  this,  Mr.  Bancroft,  Hist.  U.  S.  vol.  i.,  p.  402,  says,  "but  the  people  of 
Connecticut  have  found  no  reason  to  deviate  essentially  from  the  frame  of  government 
established  by  their  fathers.  No  jurisdiction  of  the  English  monarch  was  recognized ; 
the  laws  of  honest  justice  were  the  basis  of  their  commonwealth,  and  therefore,  its 
foundations  were  lasting."  Considering  the  reputation  of  the  earher  legislation  of 
Connecticut  as  a  restraint  on  the  liberty  of  the  subject,  it  may  be  well  to  refer  the  cu- 
rious reader  to  the  statutes  of  1715,  respecting  the  observation  of  the  Lord's  day  and 
for  the  suppression  of  immorality  and  irreligion — p.  206  of  the  first  edition  of  the 
State  laws. 

^  In  the  legislation  above  cited  the  charter  granted  by  the  Earl  of  Warwick,  Lord 
High  Admiral,  and  others,  Commissioners  under  the  authority  of  Parliament,  March 
14,  1643,  was  expressly  referred  to  as  a  source  of  political  power.  This  charter  gave 
to  the  "  inhabitants  of  the  towns  of  Providence,  Portsmouth  and  Newport,  a  free  and 
absolute  Charter  of  incorporation  to  be  known  by  the  name  of  the  Incorporation  of 
Providence  Plantations,  &c.,  together  with  full  power  and  authority  to  rule  them- 
selves, and  such  others  as  shall  hereafter  inhabit,  &c.,  by  such  a  form  of  civil  govern- 
ment, as  by  voluntary-  consent  of  all,  or  the  greater  part  of  them,  they  shall  find  most 
suitable,  tfcc.  Provided  nevertheless  that  the  said  laws,  &c.,  &c.,  be  conformable  to 
the  laws  of  England,  so  far  as  the  nature  and  Constitution  of  the  place  will  admit." 
(Records  of  the  Col.  edited  by  J.  R.  Bartlett,  1856,  vol.  I.  p.  143,  156.)  But  the 
persons  who  acted  as  the  freemen,  or  who  assumed  to  be  these  inhabitants,  were  those 
who  as  members  of  the  several  towns  or  settlements — Providence,  Portsmouth,  New- 
port, and  Warwick, — had,  in  the  name  of  the  majority,  declared  themselves  the  "  free- 
men" or  "free  inhabitants."  Those  of  the  first-named  three  towns  had,  for  some 
years  before,  exercised  civil  power  in  their  several  settlements.  The  inhabitants  of 
Warwick,  had  not  assumed  such  a  power,  which  they  contended  was  illegal :  but, 
though  not  mentioned  in  the  Charter,  they  appeared  in  the  Assembly  of  1647.     (Rec- 

18 


274  LAWS    OF    RHODE    ISLAND. 

"  It  was  ordered,  upon  the  request  of  the  Commissioners  of 
the  town  of  Pro\idence,  that  their  second  instruction  should  be 
granted  and  established  unto  them,  viz.,  '  We  do  voluntarily 
assent  and  are  freely  willing  to  receive  and  be  governed  by  the 
laws  of  England,  together  with  the  way  of  the  administration 
of  them,  so  far  as  the  nature  and  constitution  of  this  plantation 
will  admit,  desiring,  so  far  as  may  be  possible,  to  hold  a  corre- 
spondence with  the  whole  colony,"  &c.  1  R.  I.  Col.  Rec. 
p.  147.  Also  under  the  title  Touching  Laws,  in  four  heads,  the 
first  of  which  is, — "  That  no  person  in  this  colony  shall  be  taken 
or  imprisoned,  or  disseised  of  his  lands  and  liberties,  or  be  ex- 
iled, or  any  otherwise  molested  or  destroyed,  but  by  the  lawful 
judgment  of  his  peers,  or  by  some  known  law,  and  according  to 
the  letter  of  it,  ratified  and  confirmed  by  the  major  part  of  the 
General  Assembly,  lawfully  met  and  orderly  managed."  1  R.  I. 
Col.  Records,  157. 

"  Touching  the  Common  Law,  it  being  the  common  right 
among  common  men,  and  is  profitable  either  to  direct  or  cor- 
rect all  without  exception  ;  and  it  being  true,  which  that  great 
Doctor  of  the  Gentiles  once  said,  that  the  law  is  made  or  brought 
to  light,  not  for  a  righteous  man,  who  is  a  law  unto  himself,  but 
for  the  lawless  and  disobedient  in  the  general,  but  more  par- 
ticularly for  murderers  of  fathers  and  mothers,  for  manslayers, 
for  whoremongers,  and  those  that  defile  themselves  with  man- 
kind, for  manstealers,  for  liars  and  perjured  persons,  unto  which, 
upon  the  point  may  be  reduced  the  common  law  of  the  realm 
of  England,'  the  end  of  which  is,  as  is  propounded,  to  preserve 
every  man  safe  in  his  own  person,  name  and  estate,  we  do  agree 
to  make  or  rather  to  bring  such  laws  to  light  for  the  direction  or 
correction  of  such  lawless  persons  ;  and  for  their  memory's  sake 
to  reduce  them  to  these  five  general  laws  or  heads,"  &c.,  &c.  1 
Records,  158. 

ords,  vol.  I.  pp.  27,  45,  52,  87,  129 ;  2  Douglas'  Summary,  p.  80.  Staples'  Annals  of 
Prov.  p.  55.)  This  Assembly  declared — "  the  form  of  government  established  in 
Providence  Plantations  is  democratical ;  that  is  to  say,  a  government  held  by  the  free 
and  voluntary  consent  of  all  or  the  greater  part  of  the  free  inhabitants."  1  Records, 
156. 

'  This  definition  may  be  attributed  to  the  Antinomian  doctrines  of  the  great  ma- 
jority of  the  first  settlers,  1  Douglas'  Summary,  p.  4:-14,  note. 


LAWS    OF    RHODE    ISLAND.  275 

Debts,  &c.  "  But  he  [the  debtor]  shall  not  be  sent  to  prison, 
there  to  lie  languishing  to  no  man's  advantage  ;  unless  he  re- 
fuse to  appear  or  to  stand  to  their  order."  1  Eecords,  181. 

Under  Breach  of  Covenant  it  is  enacted  that  servants  shall 
not  depart  from  service  before  the  expiration  of  the  time  agreed, 
&c.  1  Records,  183. 

1652.  "  Whereas,  there  is  a  common  course  practised 
amongst  Englishmen  to  buy  negers,  to  the  end  that  they  may 
have  them  for  service  or  slaves  forever  ;  for  the  preventinge  of 
such  practices  among  us,  let  it  be  ordered,  that  no  blacke  man- 
kind.or  white  being  forced  by  covenant  bond  or  otherwise,  to 
serve  any  man  or  his  assighnes  longer  than  ten  yeares,  or  untill 
they  come  to  bee  twentie-four  yeares  of  age,  if  they  be  taken  in 
under  fourteen,  from  the  time  of  their  cominge  within  the  Hb- 
erties  of  this  collonie.  And  at  the  end  or  terme  of  ten  years  to 
set  them  free  as  the  manner  is  with  English  servants.  And 
that  man  that  will  not  let  them  goe  free,  or  shaU  sell  them  away 
elsewhere,  to  the  end  that  they  may  bee  enslaved  to  others  for 
a  long  time,  hee  or  they  shaU  forfeit  to  the  collonie  forty 
pounds.'"  1  Records,  241,  243. 

1675.  "  The  legislature'^  passed  this  order  that  'no  Indian 
in  this  Colony  be  a  slave,  but  only  to  pay  their  debts,  or  for 
their  bringing  up,  or  custody  they  have  received,  or  to  perform 
covenant,  as  if  they  had  been  countrymen,  not  in  war.'  Some 
of  the  Indian  captives  were,  however,  in  the  great  Indian  war 
of  1675-6,  sold  by  the  Colony  ;  not  for  life,  however,  but  for  a 


'  Under  the  then  existing  form  of  government  this  act  operated  only  in  the  towns 
of  Providence  and  Warwick,  by  whose  Commissioners  it  was  enacted.  According  to  a 
Eeport  upon  Abolition  Petitions  made  by  Elisha  R.  Potter,  of  Kingstown,  in  the  R.  I. 
Legislature,  Jan.  1840,  this  is  the  first  legislative  notice  of  the  subject.  It  never  ob- 
tained the  force  of  a  general  law.     1  Btiiic.  174.     1  Hildr.  373. 

'  This  was  under  the  Charter  of  Charles  2d,  1663,  which  declared  that  certain 
persons  named,  "  and  all  such  others  as  now  are,  or  hereafter  shall  be  admitted  free  of 
the  Company  and  Society  of  our  Colony  of  Providence  Plantations,  in  the  Narra- 
ganset  Bay,  in  New  England,  shall  be  from  time  to  time,  and  forever  hereafter,  a 
body  corporate  and  politick,  in  fact  and  name,  by  the  name  of  the  Governor  and  Com- 
pany of  the  English  Colony  of  Rhode  Island  and  Providence  Plantations,"'  etc.,  and 
provided  for  an  assembly  of  deputies  to  be  elected  "  by  the  major  part  of  the  Free- 
men of  the  respective  places,  towns,  or  places,"  &c.,  "  such  laws,  <tc.,  be  not  contrary 
and  repugnant  unto,  but,  as  near  as  may  be,  agreeable  to  the  laws  of  this  our  realm  of 
England,  considering  the  nature  and  constitution  of  the  place  and  people  there."  2 
Hazard.  612. 


276  LAWS   OF    RHODE   ISLAND. 

term  of  years,  according  to  their  circumstances,  and  for  their 
protection."  2  R.  I.  Col.  Rec.  535,  549.  Staples'  An.  Pr.  70. 
1700.  It  was  declared,  "  that  in  all  actions,  matters, 
causes  and  things  whatsoever,  where  no  particular  law  of  the 
colony  is  made  to  determine  the  same,  then  in  all  such  cases 
the  laws  of  England  shall  be  put  in  force  to  issue,  determine 
and  decide  the  same,  any  usage,  custom  or  law  to  tlie  contrary 
notwithstanding.".  R.  I.  Col.  Laws  (Edit.  1744),  p.  28.  1  Story's 
Comm.  64,  cites  p.  192. 

1714.  "We  find  an  act  passed  to  prevent  slaves  running 
away." 

1715.  "An  act  was  passed,  to  prohibit  the  importation  of 
Indian  slaves  into  this  colony.  This  act  was  continued  in  force 
and  re-enacted  in  the  digest  of  1766.  It  states  in  the  pre- 
amble that  the  increase  of  their  number  discourages  the  immi- 
gration of  white  laborers." 

1728.  "  An  act  was  passed  requiring  persons  manumitting 
mulatto  or  negro  slaves,  to  give  security  against  their  becoming 
a  town  charge."  E.  R.  Potter's  Report. 

1750.  An  act  was  passed  to  prevent  all  persons  from  enter- 
taining Indian,  negro  or  mulatto  servants  or  slaves,  or  trading 
with  them.  (See  Rev.  L.  of  1798,  p.  612.) 

1770.  An  act  for  breaking  up  disorderly  houses  kept  by 
free  negroes  and  mulattoes,  and  for  putting  out  such  negroes 
and  mulattoes  to  service.  (See  Rev.  L.  of  1798,  p.  611.) 

1774,  June.  "  An  act  was  passed,  prohibiting  the  im- 
portation of  negroes  into  this  colony,  the  preamble  6f  which  we 
will  quote  ; — '  whereas,  the  inhabitants  of  America  are  gene- 
rally engaged  in  the  preservation  of  their  own  rights  and  liber- 
tips,  among  which  that  of  personal  freedom  must  be  considered 
as  the  greatest,  and  as  those  who  are  desirous  of  enjoying  all 
the  advantages  of  liberty  themselves  should  be  willing  to  ex- 
tend personal  liberty  to  others,'  &c.     By  this  act'  all  slaves, 

'  This  act  originated  in  a  Providence  town  meeting,  at  which  also  it  was  resolved, 
"  whereas  Jacob  Shoemaker,  late  of  Providence,  died  intestate  and  hath  left  six  ne- 
groes, four  of  whom  are  infants,  and  there  being  no  heir  to  the  said  Jacob,  in  this  town 
or  colony,  the  said  negroes  have  fallen  to  this  town  by  law,  provided  no  heir  should 


LAWS    OF    NEW    YORK.  277 

thereafter  brought  into  the  State  were  to  be  free  except  slaves 
of  persons  travelling  through  the  State,  or  persons  coming  from 
other  British  colonies  to  reside  here.  Citizens  of  Rhode  Island 
owning  slaves,  were  forbidden  to  bring  slaves  into  the  colony, 
except  they  gave  bond  to  carry  them  out  again  in  a  year.  This 
exception  was  however  expressly  repealed  in  February,  1784. 
E.  R.  Potter's  Report. 

1776,  May.  The  General  Assembly  repealed  the  Act  for 
the  more  effectual  securing  to  his  Majesty  the  allegiance,  &c.  A 
virtual  declaration  of  Independence.  Staples'  Annals  of  Prov. 
p.  252.' 

§  224.  Legislation  of  New  York. 

Whatever  local  law  affecting  personal  condition  or  status 
mio-ht  have  been  derived  from  the  Dutch  government,  within 
the  limits  afterwards  included  in  the  British  province  of  New 
York,  would,  on  general  principles,  have  continued  after  the  es- 
tablishment of  the  English  authority,  until  changed  by  positive 
enactment.  ^  The  general  principles  on  which  the  slavery  of 
Africans  and  Indians  was  recognized  in  the  other  colonies,  were 
equally  recognized  there  under  the  law  of  Holland,  which  com- 
prehended those   doctrines  derived  from  the  civil  law,'  which 

appear:  Therefore,  It  is  voted  by  this  meeting,  that  it  is  unbecoming  to  the  character 
of  freemen  to  enslave  the  said  negroes,  and  they  do  hereby  give  up  all  claim  of  right 
or  property  in  them  the  said  negroes  or  either  of  them,"  &c.,  &:.  See  Staples'  An- 
nals of  Providence  ;  p.  237. 

'  For  the  history  of  slavery  in  the  N.  E.  colonies  and  States,  see  2  vol.  of  Elliot's 
Hist,  of  New  England. 

'  The  civil  law  was  the  common  law  of  the  Dutch  empire. — 1  Thompson's  Hist. 
of  Long  Isl.  p.  108.  The  treatise  of  Van  Leeuwen,  written  in  the  latter  part  of  the 
17th  century,  transl.  London,  1820,  under  the  title,  i^mm.  on  Iloman-Dutch  Law, 
has  always  been  received  in  ths  colonics  settled  by  HolLmd.  In  this  work,  B.  I.  c.  5, 
8.  4,  "  with  respect  to  persons,  every  one  is  free  among  us  by  their  birth,  and  slavery 
is  unknown  among  us  and  not  in  use,  so  that  in  order  to  protect  natural  liberty,  slaves 
who  are  brought  here  from  otlier  countries  are  declared  to  be  free  as  soon  as  they 
reach  the  limFts  of  our  countries,  notwithstanding  their  masters."  (Noting  Christi- 
nseus,  Gudelin,  Grotius,  Zypse,  &c.,  as  cited  in  the  next  chapter.)  Van  Der  Linden 
in  Inst,  of  the  Laws  of  Holland,  pub.  1806,  transl.  by  J.  Henry,  London,  1828,  for 
use  in  the  colonies,  says,  B.  i.  §  3,  "  The  difference  between  freemen  and  slaves,  which 
occupies  so  large  a  part  of  the  Roman  law,  does  not  exist  in  our  coixntry,  where  all 
men  are  bom  free.  Slavery  is  not  in  use  in  this  country;  nay,  even  the  slaves  who 
come  here  from  the  Indies  become  free  (ipso  facto)  by  their  landing,  provided  they  are 
not  runairays  or  fugitives."  But  in  the  introductory  part  of  the  work  the  same  author 
especially  notices  the  Roman  law  of  slavery  and  manumission  as  being  apphcable  ui 
the  colonies. 


278  LAWS    OF    NEW    YORK. 

have  been  set  forth  in  the  fourth  chapter.  There  is,  probably, 
no  legislative  enactment  proceeding  from  the  local  authority  to 
which  the  condition  of  slavery,  under  the  Dutch  government, 
can  be  attributed.  The  personal  condition  of  the  free  white 
inhabitants,  under  private  law,  was  not  essentially  different 
from  that  of  the  English  in  the  other  colonies,  and  the  same 
distinction  of  race  which  existed  in  all  the  European  colonies,  of 
that  time,  must  be  taken  to  have  limited  the  terms  of  any  acts 
of  the  new  government  extending  to  the  inhabitants  the  rights 
and  privileges  of  free  persons  under  the  English  law  of  condition. ' 
1664.''  The  first  local  legislation  under  the  English  govern- 
ment was  that  published  under  the  authority  of  the  Duke  of 
York,  as  proprietor, '^  and  known  in  the  history  of  the  colony  as 
"  the  Duke's  Laws."  This  code  was  promulgated  from  East 
Hampton,  in  the  eastern  part  of  Long  Island,  which  was  settled 
principally  by  persons  of  English  origin,  who  had  before  en- 
deavored to  incorporate  themselves  with  the  Connecticut  colony,^ 
and  seems  to  have  been  modelled  after  the  existing  New  Eng- 
land codes.  It  is  entitled,  "  Laws  collected  out  of  the  several 
laws  now  in  force  in  his  majestie's  American  colonies  and  plan- 
tations." It  has  been  published  in  vol.  i.  of  the  Collections  of 
the  New  York  Historical  Society,  p.  307.  It  contains,  under 
the  caption.  Bond  Slavery — "  No  Christian  shall  be  kept  in  bond 
slavery,  villenage,  or  captivity,  except  such  who  shall  be  judged 
thereunto  by  authority,  or  such  as  willingly  have  sold  or  shall 
sell  themselves,  in  which  case  a  record  of  such  servitude  shall 
be  entered  in  the  court  of  sessions  held  for  the  jurisdiction 
where  such  masters  shall  inhabit,  provided  that  nothing  in  the 

'  The  third  of  the  Articles  of  Capitulation,  1664,  Aug.  27,  declares,  "All  people 
shall  still  continue  free  denizens  and  shall  enjoy  their  lands,  houses,  goods,  wheresoever 
they  are  within  this  country,  and  dispose  of  them  as  they  please."  See  2  Kevised 
Laws  of  1813,  Appendix  I. 

^  The  patent  to  the  Duke,  dated  March  16,  1664,  for  the  lands  lying  between  the 
Connecticut  and  Delaware  rivers,  granted  to  him,  "  his  heirs,  deputies,  agents,  com- 
missioners, and  assigns,"  "  full  and  absolute  power  and  authority,"  ic.  So  always  as 
the  said  statutes,  ordinances,  and  proceedings  be  not  contrary  to,  but,  as  near  as  con- 
veniently may  be,  agreeable  to  the  laws,  statutes,  and  government  of  this  our  realm 
of  England." — Leaming  and  Spicer's  Coll.  p.  3.  A  second  grant  was  made  in  similar 
terms,  in  1674,  L.  &  S.  p.  41. 

=•  See  2  Hazard's  Coll.  pp.  7,  18,  173,  248,  434.  1  Thompson's  ffist.  of  Long 
Island,  p.  117-126. 


LAWS   OF    NEW    YORK.  279 

law  contained  shall  be  to  the  prejudice  of  master  or  dame  who 
have  or  shall  by  any  indenture  or  covenant  take  apprentices  for 
term  of  years,  or  other  servants  for  term  of  years  or  life." 

Under  the  caption  Capital  Laios,  art.  7,  "  If  any  person 
forcibly  stealeth  or  carrieth  away  any  mankind  he  shall  be  put 
to  death." 

Under  the  caption  Fugitives,  "  Every  apprentice  and  servant 
that  shall  depart  or  absent  themselves  from  their  master  or 
dame,  without  leave  first  obtained,  shall  be  adjudged  by  the 
court  to  double  the  time  of  their  such  absence,  by  future  ser- 
vice, &c." 

Caption,  Masters,  Servants,  and  Laborers,  among  other 
provisions  declares,  "  If  any  servant  shall  run  away  from  their 
master  or  dame,  or  any  other  inhabitants  shall  privily  convey 
them  away,  or  upon  suspicion  of  such  evil  intentions,  every 
justice  of  the  peace,"  &c.,  is  authorized  to  pursue  such  persons. 

"  No  servant,  except  such  as  are  duly  so  for  life,  shall  be  as- 
signed over  to  other  masters  or  dames  by  themselves,  their  ex- 
ecutors, or  administrators  for  above  the  space  of  one  year,  unless 
for  good  reasons  offered  the  court  of  sessions  shall  otherwise 
think  fit  to  order." 

The  word  slaves  is  not  used  in  this  collection  of  laws  ;  ser- 
vants are  distinguished  only  as  being  bound  for  years  or  for 
Ufe.' 

1683.  In  this  year  a  local  assembly  was  allowed  by  the 
Duke,  and  a  governor  sent  out  by  him  ;  an  act  of  this  date  en- 
titled, An  act  for  naturalizing  all  those  of  foreign  nations  at 
present  inhabiting  luithin  this  jorovince  and  professing  Christi- 
anity, and  for  encouragement  for  others  to  come  and  settle 
within  the  same,  (recited  in  an  act  of  1715,  Bradford's  Laws, 
p.  125,)  contains  the  provision,  that  "  nothing  contained  in  this 
act  is  to  be  construed  to  discharge  or  set  at  liberty  any  servant, 
bondman,  or  slave,  but  only  to  have  relation  to  such  persons  as 
are  free  at  the  making  hereof"  Under  date  October  30,  is  a 
"  charter  of  the  Ubertys  and  privileges  granted  by  his  Royal 
Highness  to  the  inhabitants  of,"  &c.  "  Freemen"  are  repeatedly 

'  See  abstract  of  this  code  in  2  Hildr.  pp.  44-51. 


280  LAWS    OF    NEW    YORK. 

mentioned  herein,  but  the  term  is  not  defined.  This  charter 
was  probably  repealed.  See  vol.  ii.  Revised  Laws,  1813,  app. 
No.  2. 

1691,  April  9.  Session  of  the  first  colonial  assembly,  whose 
acts  are  binding.  (Smith's  Hist,  of  N.  Y.,  p.  100.)  May  6.  An 
act  declaring  what  are  the  rights  and  privileges  of  their  majes- 
ties' subjects  inhabiting  tvithin  their  province  of  Netv  York, 
very  similar  to  the  above  charter,  contains  a  provision,  "  that 
no  freeman  shall  be  taken  and  imprisoned  or  be  disseised  of  his 
freehold,  or  liberty,  or  free  customs,"  &c.,  &c. — Bradford's 
Laws,  p.  2-4.  This  act  was  repealed  by  the  crown  in  169V. — 
Smith's  Hist.  p.  76,  notes  ;  Smith  and  Livingston's  Laws,  ed. 
1752,  p.  5. 

V  1702.1  j^j^  ^(.f  j-Qy  regulating  slaves.  (Bradford's  L.  ed. 
1726,  vol.  i.  p.  45.)  The  captions  are  :  Not  lawful  to  trade  with 
negro  slaves.  Masters  may  punish  their  own  slaves.  Not  above 
three  slaves  may  meet  together.  A  common  whipper  to  be  ap- 
pointed. A  slave  not  to  strike  a  freeman.  Penalty  for  conceal- 
ing slaves.  If  negroes  steal,  how  satisfaction  is  to  be  made. 
Evidence  of  negroes,  how  far  good.  Enacted  for  one  year,  but 
appears  to  have  been  revised  and  continued  in  force  at  least 
until  1726. 

1705.  An  act  to  prevent  the  running  aioay  of  negro  slaves, 


'  In  1702  Lord  Combiiry  was  appointed  governor  of  New  York  and  the  Jerseys 
under  certain  "  instructions"  from  the  crown.  See  Learning  and  Spicer'sColl  pp.  619- 
642.  Art.  16,  provides  for  the  revision  of  laws.  49.  "You  are  to  take  care  that  no 
man's  life,  member,  freehold,  or  goods  be  taken  away  or  harmed  in  our  said  province, 
otherwise  than  by  established  and  known  laws,  not  repugnant  to,  but  as  near  as  may 
be,  agreeable  to  the  laws  of  England."  53.  Directs  a  census,  mentioning  slaifes  ;  also, 
after  enjoining  encouragement  of  merchants,  and  in  particular  the  Royal  African 
Company  of  England  ;  "  And  whereas  we  are  willing  to  recommend  unto  the  said 
company,  that  the  said  province  may  have  a  constant  and  sufficient  supply  of  mer- 
chantable negroes  at  moderate  rates,  in  money  or  commodities,  so  you  are  to  take  es- 
pecial care  that  payment  be  duly  made,"  &c.,  "  and  you  are  yearly  to  give  unto  us 
and  to  our  commissioners  for  trade  and  plantations  an  account  of  what  number  of  ne- 
groes our  said  province  is  yearly  supplied  with,  and  at  what  rates."  "  Yon  shall  en- 
deavour to  get  a  law  past  for  the  restraining  of  any  inhuman  severity,  which  by  ill 
masters  or  overseers  may  be  used  towards  their  Christian  servants  and  their  slaves, 
and  that  provision  be  made  therein  that  the  wilful!  killing  of  Indians  and  negroes  may 
he  punished  with  death,  and  that  a  fit  penalty  be  imposed  for  the  maiming  of  them." 
"  You  are  also,  with  the  assistance  of  the  council  and  assembly,  to  find  out  the  best 
means  to  facilitate  and  encourage  the  conversion  of  negroes  and  Indians  to  the  Christian 
religion." 


LAWS    OF    NEW    YORK. 


281 


out  of  the  city  and  county  of  Albany,  to  the  French  at  Canada.— 
Bradford's  L.  p.  60. 

1706.-^71  act  to  encourage  the  haptizing  of  negro,  Indian, 
and  muJaito  slaves.     Bradf.  L.    p.  65.     "  Whereas  divers  of 
her  majesty's  good  subjects,  inhabitants  of  this  colony,  now  are, 
and  have  been  willing  that  such  negroe,  Indian,  and  mulatto 
slaves,  who  belong  to  them,  and  desire  the  same,  should  be  bap- 
tized, but  are  deterred  and  hindered  therefrom  by  reason  of  a 
groundless  opinion  that  hath  spread  itself  in  this  colony,  that 
by  the  baptizing  of  such  negro,  Indian,  or  mulatto  slave,  they 
would  become  free,  and  ought  to  be  set  at  liberty.     In  order 
therefore  to  put  an  end  to  all  such  doubts  and  scruples  as  have, 
or  hereafter  at  any  time  may  arise  about  the  same— -Be  it  en- 
acted, dtc,  that  the  baptizing  of  a  negro,  Indian,^  or  mulatto 
slave  shall  not  be  any  cause  or  reason  for  the  setting  them  or 
any  of  them  at  Kberty. 

"And  be  it,  &c.,  that  all  and  every  negro,  Indian,  mulatto 
and  mestee  bastard  child  and  children,  who  is,  are,  and  shall  be 
born  of  any  negro,  Indian,  or  mestee,  shall  follow  the  state  and 
condition  of  the  mother  and  be  esteemed,  reputed,  taken  and 
adjudged  a  slave  and  slaves  to  all  intents  and  purposes  what- 
soever. 

"  Provided  always,  and  he  it,  &c.  That  no  slave  whatsoever 
in  this  colony,  shall  at  any  time  be  admitted  as  a  witness  for 
or  against  any  freeman  in  any  case,  matter  or  cause,  civil  or 
criminal,  whatsoever." 

1708. — An  act  for  preventing  the  conspiracy  of  slaves. 

Bradf  L.  p.  68. 

1712. — An  act  for  preventing,  suppressing  and  punishing 
the  conspiracy  and  insurrection  of  negroes  and  other  slaves. 
Bradf.  L.  p.  81.  In  addition  to  the  provisions  of  act  of  1702, 
are  more  stringent  enactments  against  concealing  slaves— their 
entertainment  by  free  negroes.  Enacts  that  no  negro,  Indian 
or  mulatto  that  shall  hereafter  be  made  free,  "  shall  hold  any 
land  or  real  estate,  but  the  same  shall  escheat."  Provisions  for 
security  on  emancipation,  for  trial  of  slaves  for  crimes  by  two 


282  LAWS   OF    NEW   JERSEY, 

justices  and  five  freeholders  :  but  may  have  a  jury  at  the  charge 
of  the  owner,  &c. 

1715 — An  act  declaring,  &c.,  and  for  naturalizing  all 
Protestants  of  foreign  birth,  noio  inhabiting  within  this  colony. 
Bradf.  L.^  p.  124.  Refers  to  the  letters  patent  to  the  Duke  of 
York,  permitting  the  introduction  of  foreigners  as  colonists  ; 
also  to  the  articles  of  the  surrender  of  the  province,  relating  to 
the  allegiance  and  rights  of  the  inhabitants,  and  recites  the  act 
of  1683  :  above-mentioned  declares  all  persons  of  foreign  birth, 
being  Protestants  inhabiting  the  colony,  to  be  natural  subjects 
and  entitled  to  the  privileges  of  such,  makes  no  exclusion  of 
any. 

1716. — An  act  for  explaining  and  rendering  more  effec- 
tual an  act,  &c.,  (the  act  of  1712  above-mentioned.)  Bradf. 
L.,  p.  135. 

1730. — An  act  for  the  more  effectual  preventing  and  pun- 
ishing the  conspiracy  and  insurrection  of  negroes  and  other 
slaves  ;  for  the  better  regulatiug  of  them,  and  for  repealing  the 
acts  therein  mentioned  relating  thereto.  Livingston  &  Smith's 
Laws,  vol.  I.,  p.  193. 

1740.>— An  excise  act,  Liv.  &  S.,  vol.  I.,  p.  281.  The  first 
twelve  sections  relate  principally  to  slaves  whose  importation 
is  encouraged  by  the  terms  of  sec.  9. 

1753.  c.  27.— A  similar  act.     2  L.  &  S.,  p.  21. 

1773. — An  act  to  p)revent  aged  and  decrepid  slaves  from 
becoming  burdensome  luithin  this  colony.  Ed.  fo.  1774,  p.  764, 
Rev.  c.  1508. 

1775. — May  22,  a  Provincial  Congress  assembles. 

§  225.  Legislation  of  New  Jersey. 

1664. — After  the  acquisition  of  New  York  and  New  Jersey 
by  the  English,  the  earliest  local  government  in  the  latter  colo- 
ny was  founded  on  the  grant  of  political  powers  to  the  Duke  of 
York  as  proprietor,  1664,  by  him  conveyed  in  the  same  year  to 

'  In  1741-2,  a  so-called  "negro  plot"  or  conspiracy  was  supposed  to  have  been 
formed  by  the  slaves  in  the  city  of  New  York  ;  an  account  of  the  trial  and  execution 
of  several  negroes  accused,  was  published  by  Horsmanden. 


LAWS    OF    NEW    JERSEY.  283 

Berkley  and  Carteret,  and  by  other  public  acts  confirmed  to 
them  and  their  grantees.  See  Leaming  &  Spicer's  Coll.,  8, 
141,  145.'  In  the  first  Proprietary  Articles  of  Concession,  &c., 
servants,  slaves,  and  Cliristian  servants  are  spoken  of.  L.  & 
S.,  p.  12,  and  in  laws  passed  in  1668,  L.  &  S.,  82. 

1675. — An  act  provided  punishments  for  transporting, 
harboring,  or  entertaining  apprentices,  servants  and  slaves.  L. 
&  S.,  109. 

1676. — The  divisions  of  East  and  West  Jersey  established 
by  the  proprietors,  each  having  a  several  government  and  legis- 
lative assembly.  The  laws  of  East  Jersey  in  1682,  which  con- 
tain a  guarantee  of  personal  liberties  in  the  terms  of  Magna 
Charta,  L.  &  S. ,  240,  also  contain  laws  against  entertaining  fu- 
gitive servants  and  trading  with  negro  slaves.  L.  &  S.,  238, 
255. 

1694,  c.  2. — An  act  concerning  slaves,  contains  the  com- 
mon police  regulations  in  respect  to  them.  L.  &  S.,  340.  1695, 
c.  3,  An  act  concerning  negroes,  provides  for  trial  of  "  negroes 
and  other  slaves,  for  felonies  punishable  with  death,  by  a  jury 
of  twelve  persons  before  three  justices  of  the  peace  ;  for  theft, 
before  two  justices  ;  the  punishment  by  whipping."  L.  &  S. 
356.  In  the  legislation  of  West  Jersey,  slaves  are  not  named. 
A  law  of  1676,  c.  23,  providing  for  publicity  in  judicial  pro- 
ceedings, concludes  "  that  all  and  every  person  and  persons  in- 
habiting the  said  province,  shall,  as  far  as  in  us  lies,  be  free 
from  oppression  and  slavery."  L.  &  S.,  398.  Servants  and 
runaway  servants  are  mentioned,  p.  306,  477  ;  selling  rum  to 
negroes  and  Indians  is  forbidden,  p.  512. 

1702. — Surrender  by  the  proprietors  of  East  and  West 
Jersey  to  the  Queen,  of  their  rights  of  government.  L.  &  S., 
609,  617.  The  province  being  then  placed  with  New  York 
under  the  government  of  Lord  Cornbury.  See  ante,  p.  280,  note. 

1704. — An  act  for  regulating  negroe,  Indian  and  mulatto 
slaves  loitldn  the  j^fovince  of  Neiu  Jersey.  Tabled  as  disal- 
lowed in  a  list  of  such  laws.     1  Neville's  Laws,  465. 

'  See  limitations  of  legislative  power  in  the  grant ;  ante,  p.  278,  n.  2. 


284  LAWS    OF    NEW    JERSEY. 

1713. — An  act/or  regulating  slaves.  (1  Nev.  L.,  c.  10.) 
Sect.  1.  Against  trading  with  slaves.  2.  For  arrest  of  slaves 
being  without  pass.  3.  Negro  belonging  to  another  province, 
not  having  license,  to  be  whipped  and  committed  to  jail.  4. 
Punishment  of  slaves  for  crimes  to  be  by  three  or  more  justices 
of  the  peace,  with  five  of  the  principal  freeholders,  without  a 
grand  jury  ;  seven  agreeing,  shall  give  judgment.  5.  Method 
in  such  cases  more  particularly  described.  Provides  that  "  the 
evidence  of  Indian,  negro,  or  mulatto  slaves  shall  be  admitted 
and  allowed  on  trials  of  such  slaves,  on  all  causes  criminal."  6. 
Owner  may  demand  a  jury.  V,  8.  Compensation  to  owners  for 
death  of  slave.  9.  A  slave  for  attempting  to  ravish  any  white 
woman,  or  presuming  "  to  assault  or  strike  any  free  man  or 
woman  professing  Christianity,"  any  two  justices  have  discre- 
tionary powers  to  inflict  corporal  punishment,  not  extending  to 
life  or  limb.  10.  Slaves,  for  stealing,  to  be  whipped.  11.  Pen- 
alties on  justices,  &c.,  neglecting  duty.  12.  Punishment  for 
concealing,  harboring,  or  entertaining  slaves  of  others.  13.  Pro- 
vides that  no  negro,  Indian,  or  mulatto  that  shall  thereafter  be 
made  free,  shall  hold  any  real  estate  in  his  own  right,  in  fee 
simple  or  fee  tail.  14.  "And  whereas  it  is  found  by  experi- 
ence that  free  negroes  are  an  idle,  slothful  people,  and  prove 
very  often  a  charge  to  the  place  where  they  are,"  enacts  that 
owners  manumitting,  shall  give  security,  &c. 

An  act  for  laying  a  duty  on  negro,  Indian,  and  mulatto 
slaves  imported  or  brought  within  this  province.  Allinson's 
Laws,  c.  50,  laid  a  duty  of  ten  pounds  on  every  slave  limited 
to  seven  years. 

An  act  for  regulating  of  ivhite  servants  and  taking  up  sol- 
diers and  seamen  deserting,  &c.  Neville's  L.  c.  11.  By  sec.  7, 
persons  from  neighboring  provinces  suspected,  &c.,  must  pro- 
duce a  pass,  from  a  Justice,  "  signifying  that  they  are  free  per- 
sons," otherwise  to  be  committed  to  gaol,  to  be  "  delivered  by 
order  of  their  captain,  master,  mistress,  or  other  due  course  of 
law." 

1730.  An  act  imposing  a  duty  on  j^ersons  convicted  of 
heinous  crimes  and  to  prevent  poor  and  impotent  persons  being 


LAWS    OF   NEW   JERSEY.  285 

imported  into  this  province,  and  for  the  amendment  of  the  law 
relating  to  servants.  Nev.  L.  c.  57. 

^751.  An  act  to  restrain  taver'n-keepers  and  others  from 
selling  strong  liquors  to  servants,  negroes  and  midatto  slaves, 
and  to  prevent  negroes  and  mulatto  slaves  from  meeting  in 
large  companies,  from  running  about  at  night,  and  from  hunt- 
ing or  carrying  a  gun  on  the  Lord's  day.     Nev.  L.  c.  112- 

1754.  Nev.  L.  c.  119,  §  10,  provides  for  the  Borough  of 
Elizabeth  —  any  white  servant  or  servants,  slave  or  slaves, 
which  shall  "  be  brought  before  the  Mayor,  &c.,  by  their  mas- 
ters or  other  inhabitant  of  the  Borough,  for  any  misdemeanor 
or  rude  or  disorderly  behavior,  may  be  committed  to  the  work- 
house to  hard  labor  and  receive  correction  not  exceeding  thirty 
lashes." 

1760    An  act  for  enlisting  soldiers,  &c.,  Nev.  L.  c.  141,  sec.  • 
6,  provides  against  enlistment  of  any  "young  man  under  the  age 
of  twenty-one  years,  or  any  slaves  who  are  so  for  terms  of  life, 
or  apprentices,"  without  leave  of  their  masters,  &c. 

1768.  An  act  to  regulate  the  trial  of  slaves  for  murder 
and  other  crimes  and  to  repeal  so  much  of  an  act,  &c.  Allinson, 
L..  c.  475.  Sec.  1,  2,  provides  for  trial  of  slaves  by  the  ordinary 
higher  criminal  courts.  3.  That  the  expenses  of  the  execution, 
&c.,  shall  be  levied  on  order  of  the  justices  from  the  owners  of 
all  able-bodied  slaves  in  the  county.  4.  Repeals  sec.  4,  5,  6,  7,  of 
the  act  of  1713. 

1769.  An  act  laying  a  duty  on  the  purchasers  of  slaves 
imported  into  this  colony.^  Allinson's  L.  c.  494.  Recites — 
"  Whereas  duties  on  the  importation  of  negroes  in  several  of 
the  neighboring  colonies  hath,  on  experience,  been  found  bene- 
ficial in  the  introduction  of  sober  industrious  foreigners,  to  set- 
tle under  his  Majesty's  allegiance,  and  the  promoting  a  spirit  of 
industry  among  the  inhabitants  in  general,  in  order  therefore 
to  promote  the  same  good  designs  in  this  government  and  that 
such  as  purchase  slaves  may  contribute  some  equitable  propor- 
tion of  the  public  burdens  :"  provides  for  a  duty,  and  also  for 
further  securities  on  the  manumission  of  slaves, 

'  See  reference  to  these  acts  as  indicating  the  legality  of  slavery,  in  State  v.  Post, 
State  V.  Van  Buren,  1  Zabriskie's  R.  368,  378. 


286  LAWS   OF   PENNSYLVANIA. 

1776,  July  2.  A  constitution  adopted  for  the  colony.  Art, 
4,  declares  all  inhabitants  of  full  age,  who  are  worth  fifty 
pounds,  entitled  to  vote ;  21,  22,  declares  the  common  law  of 
England  and  the  former  statute  law  of  the  province  to  be  in 
force.     Wilson's  ed.  Laws  1784. 

§  226.  Legislation  of  Pennsylvania. 

Settlements  had  been  made  on  the  western  bank  of  the 
Delaware,  by  the  Dutch  and  Swedes,  but  the  soil  had  been  be- 
fore claimed  by  the  British  crown,  and  the  governors  of  New 
York,  under  the  patent  to  the  Duke  had  claimed  jurisdiction 
over  the  territory  :  but  the  first  local  legislation  was  derived 
from  the  charter  to  Penn  in  1680.* 

1681,  July  11 — the  date  of  certain  Conditions  and  Con- 

•  cessions  agreed  upon  by  W.  Penn,  Proprietary,  «fec.,  and  those 

who  are  the  adventurers  and  purchasers  in  the  same  province. 

Charters  and  Acts,  &c.,  ed.  1762,  vol.  i.  p.  6,  7,   of  which,  in 

connection  with  the  subject,  sections  13,  14,  15,  may  be  no- 

*  The  fourth  section  grants  to  the  Proprietarj-  and  his  heirs  and  deputies  power  of 
making  laws,  "  according  to  their  best  discretion  by  and  with  the  advice,  assent  and 
approbation  of  the  freemen  of  the  said  country-  or  the  greater  part  of  them,"  &c.  The 
fifth  specifies  other  legislative  judicial  and  executive  powers  with  the  proviso — "  that 
the  same  laws  be  consonant  to  reason  and  not  repugnant  or  contrary,  but  (as  near  as 
conveniently  may  be)  agreeable  to  the  laws,  statutes  and  rights  of  this  our  realm  of 
England,  and  saving  and  reserving  to  us,  &c.,  the  receiving,  hearing,  and  determining 
of  the  appeal  and  appeals  of  all  or  any  person  or  persons  of,  in  or  belonging  to  the 
territories  aforesaid,  or  touching  any  judgment  to  be  there  made  or  given."  The 
sixth  gives  power  to  the  Proprietor  to  make  ordinances  "for  the  preser^•ation  of  the 
peace  as  for  the  better  govermnent  of  the  people  there  inhabiting,  so  that  said  ordi- 
nances be  consonant  to  reason  and  be  not  repugnant  nor  contrary,  but,  so  far  as  con- 
veniently may  be,  agreeable  with  the  laws  of,  &c.,  and  so  as  the  said  ordinances  be 
not  extended,  in  any  sort,  to  bind,  charge,  or  take  away  the  right  or  interest  of  any 
person  or  persons  for  or  in  their  life,  members,  freehold,  goods  or  chattels,"  &c. — 
Laws  of  Pa.  fo.  p.  1,  6.  The  requisites  of  the  condition  of  a  'freeman,'  are  indicated 
in  grant  or  charter  of  liberties,  by  Penn,  25  Ap.  1682  ;  Laws  agreed  upon  in  Eng- 
land, &c.  (Append,  to  editions  of  Prov.  Laws.)  2.  That  every  inhabitant  that  is  or 
shall  be  purchaser,  &c.,  and  every  person  that  hath  been  a  servant  or  bondsman,  and 
is  free  by  his  service,  that  shall  have  taken  up  his  fifty  acres,  &c.,  and  every  inhabi- 
tant, artificer,  or  other  resident  in  the  said  province,  that  pays  scot  and  lot  to  the 
Government,  shall  and  may  be  capable  of  electing  or  being  elected  representatives  of 
the  people  in  provincial  council  or  General  Assembly  in  the  said  Province."  See  also 
Votes  and  Proceedings,  I.  p.  3,  admittmg  certain  Swede,  Finn  and  Dutch  settlers  to 
be  freemen,  and  the  act  of  Union  (annexing  the  three  counties  which  afterwards  con- 
stituted the  Province  and  State  of  Delaware,  (in  the  Append,  to  Prov.  L.)  in  which  the 
following  occurs — "And  forasmuch  as  there  must  always  be  a  people  before  there 
can  be  a  government,  and  the  people  must  be  united  and  free,  in  order  to  settle  and 
encourage  them,"  &c. 


LAWS   OF   PENNSYLVANIA. 


287 


ticed,  providing  for  the  punishment  of  injuries  done  to  the  In- 
dians, that  the  planter  injured  by  them,  "  shall  not  be  his  own 
judge  upon  the  Indian,"  and  for  a  judicial  determination  of 
controversies  arising  between  the  planters  and  the  natives  by  a 
jury  consisting  of  six  persons  of  each  race,  &c.,  &c. 

1682.  Laws  agreed  upon  in  England  :  provide,  sec.  23, — 
"  That  there  shall  be  a  register  for  all  servants,  where  their 
names,  time,  wages,  and  days  of  payment  shall  be  registered." 

29 ''  That  servants  be  not  kept  longer  than  their  time,  and 

such  as  are  careful  be  both  justly  and  kindly  used  in  their  ser- 
vice, and  put  in  fitting  equipage  at  the  expiration  thereof,  ac- 
cording to  custom."     Province  Laws,  App.  1,  2. 

1700.  "  Fourth  mo.  1.  The  bill  number  5  regulating  ne- 
groes in  their  morals  and  marriages,  &c.,  was  read  the  first  time 
and  put  to  the  vote  whether  it  should  pass  into  a  law  ?  carried 
in  the  negative."  Votes  &  Proc.  I.  p.  120.'  Memoirs  Hist. 
Soc.  Penn.  vol.  i.  p.  367,— Settle's  Notices. 

'1700.  An  act  for  the  better  regulation  of  servants  in  this 
province  and  territories.  The  captions  are—"  No  servant  to 
be  sold  out  of  this  government  without  his  consent.  Nor  as- 
sio-ned  over  except  before  a  Justice.  The  allowance  to  servants 
at  the  expiration  of  their  servitude.  And  shall  serve  five  days 
for  every  day's  absence  from  their  master,  &c.  The  reward  for 
taking  up  Kunaways,  &c.,  and  the  penalty  for  concealing  them. 
The  Penalty  on  the  Justice  for  neglect,  as  also  on  the  Sheriff. 
Likewise  for  dealing  with  servants  or  negroes,  &c.  For  this 
and  for  the  following  citations,  see  the  various  editions  of  the 
Province  Laws  of  Pa. 

c.  26.  An  act  about  departers  out  of  this  Province. 

Persons  leaving  are  required  to  procure  a  pass. — Prov.  L.  c.  132. 

c.  29.     An  act  for  the  trial  of  negroes.     The  captions 

— Two  Justices  commissioned  by  the  Governor,  with  the  assist- 
ance of  six  freeholders,  to  try  negroes  for  murther,  &c.     Their 

'2Hadr.  505.  "  The  assembly  refused  to  assent  to  Penn's  proposition  for  the  le- 
gal marriage  and  instruction  of  slaves,  but  passed  a  rigid  police  law  for  the  regulation 
aud  punishment  of  negro  slaves." 

'  For  the  history  of  the  various  changes  in  the  frame  of  Government  before  this 
date,  see  Preface  to  the  Votes  and  Proceedings.  2  Hildr.  63,  67,  205,  207. 


288  LAWS   OF    PENNSYLVANIA. 

qualification  and  manner  of  proceeding  thereon.  Their  duty 
and  power  to  acquit  or  condemn.  How  sentence  to  be  given 
and  execution  done.  Punisliment  for  rape.  For  stealing.  Ne- 
groes not  allowed  to  carry  a  gun  or  other  arms.  Nor  to  meet 
above  four  in  company  on  penalty  of  whipping. — Prov.  L.  c.  135. 

c.  30.  An  act  to  prevent  the  importation  of  Indian 

slaves.  "  Whereas  the  importation  of  Indian  slaves  from  Caro- 
lina or  other  places  hath  been  observed  to  give  the  Indians  of 
this  province  some  umbrage  for  suspicion  and  dissatisfaction. 
Be  it,  &c.,  that  if  after  the  twenty-fifth  day  of  March,  in  the 
year  1706,  any  person  shall  import  or  cause  to  be  imported,  any 
Indian  slaves  or  servants  whatsoever,  from  any  province  or  colo- 
ny in  America  into  this  province,  by  land  or  water,  such  only 
and  their  children  (if  any)  excepted  as  for  the  space  of  one  year 
before  such  importation  shall  be  proven  to  have  been  menial 
servants  in  the  family  of  the  importer,  and  are  brought  in  to- 
gether with  the  importer's  family,  every  such  slave  or  servant  so 
here  landed  shall  be  forfeited  to  the  Government  and  shall  be 
either  set  at  liberty  or  otherwise  disposed  of,  as  the  Governor 
and  council  shall  see  cause." 

"  Provided  always  that  no  such  Indian  slave  as  deserting  his 
master's  service  elsewhere,  (that  shall  fly  into  this  Pronnce,) 
shall  be  understood  or  be  construed  to  be  comprehended  within 
this  act."— Prov.  L.  c.  136. 

c.  39.'  An  act  about  arrests  and  making  debtors  pay 

by  servitude. — Prov.  L.  c.  165. 

c.  50.  An  act  for  raising  revenue.     An  import  duty  is 

laid  on  negroes,  among  other  merchandise  specified. — Prov.  L. 
c.  166. 

n/  1710,  c.  14.  An  act  laying  a  duty  on  negroes,  wine,  rum, 
and  other  spirits.  Kepealed  in'  council,  1713. — Prov.  L.  c. 
172. 

1711-12,  c.  10,  An  act  to  prevent  the  importation  of  ne- 
groes and  Indians  into  this  Province.  Lays  a  prohibitory  du- 
ty on  negroes  and  Indians  ;  allows  a  drawback  or  re-exportation 

'  These  acts  of  1705 — chapters  26,  29,  30,  39,  appear  to  have  been  enacted  in 
1701,  but  disallowed  by  the  king's  conncil. 


LAWS   OF    PENNSYLVANIA.  289 

in  twenty  days  ;  an  indulgence  to  travellers,  of  two  slaves  each  ; 
runaways,  if  taken  Lack  within  twenty  days,  to  be  free  of  duty  ; 
otherwise,  if  not  claimed  within  twelve  months,  they  were  to  be 
sold.  Kepealed  by  the  Queen's  council. — Prov.  L.  c.  183  ;  (see 
ante,  p.  209,  note  from  Burge.)' 

1714,  c.  19.  A71  act/or  laying  a  duty  on  negroes  imported 
into  this  Province.  Eepealed  in  council,  1719. — Prov.  L.  c. 
209. 

1717,  c.  5.  An  act  for  continuing  a  duty  on  negroes  brought 
into  this  Province.     "  Expired," — Prov.  L.  c.  222. 

1721,  c.  1.  In  this  act,  which  regulates  public  houses,  &c., 
in  s.  4,  negroe  or  Indian  servants  are  spoken  of,  but  not  slaves  ; 
the  margin  has  the  term  slaves. — Prov.  L.  c.  23. 

c.  2.  Act  respecting  fires,  \&^t  section,   "and  if  such 

offender  be  a  negro  or  Indian  slave  he  shall,  instead  of  imprison- 
ment, be  publicly  whipped  at  the  discretion  of  the  magistrate." 
—Prov.  L.  c.  235. 

1721-2,  c.  1.  An  act  for  imposing  a  duty  on  persons  con- 
victed of  heinous  crimes  and  imported  into  this  province  as  ser- 
vants or  otherwise.  Prov.  L.  c.  237.  Repealed,  1729,  c.  8, 
s.  21. 

1722,  c.  3.  An  act  for  laying  a  duty  on  negroes  imp)orted 
into  this  Province.     "  Expired." — Prov.  L.  c.  239. 

1725,  c.  1.  Similar  title.     "  Expired."— Prov.  L.  c.  276. 

c.  4.  An  act  for  the  better  regidcding  of  negroes  in  this 

Province.  Captions  : — Value  of  negro  put  to  death  for  crime, 
how  allowed  to  owner.  Masters  importing  negroes  to  report 
them  to  collector.  Whoever  lets  free  any  negroe  shall  give  se- 
curity. The  third  section  enacts,  "  and  whereas  it  is  found  by 
experience  that  free  negroes  are  an  idle,  sloathful  people,  and 
often  prove  burthensom  to  tHe  neighborhood,  and  afford  ill  ex- 
amples to  other  negroes.  Therefore  be  it  enacted,  &c..  That  if 
any  master  or  mistress  shall  discharge  or  set  free  any  negroe,  he 
or  she  "  shall  give  recognizance  &c.,  "  but  until  such  recogni- 

'  In  1712  to  a  general  petition  for  the  emancipation  of  negro  slaves  by  law,  the  le- 
gislature of  Pennsylvania  answered  that  '  it  was  neither  just  nor  convenient  to  set  them 
at  liberty.'— 3  Banc.  408. 

19 


290  LAWS    OF    PENNSYLVANIA. 

zance  is  given  sucli  negroes  shall  not  be  deemed  free."  The  se- 
curity shall  be  given  for  negroes  set  free  by  will,  or  the  said 
negroes  shall  not  be  free. — "  That  if  any  free  negroc,  fit  to  work, 
shall  neglect  so  to  do  and  loiter  and  misspend  his  or  her  time, 
or  wander  from  place  to  place,  any  two  Magistrates  next  adjoin- 
ing are  hereby  impowered  and  required  to  bind  out  to  service, 
such  negroe,  from  year  to  year,  as  to  them  may  seem  meet." — 
Slaves  under  the  age  of  twenty-one  to  be  bound  out. — No  free 
negro  or  mulatto  to  harbor  or  entertain  any  negro,  Indian  or 
mulatto  slave, — nor  trade  with  any  such. — "  That  if  any  free 
negroe  or  mulattoe  shall  refuse  or  be  unable  to  pay  his  or  her 
Fine  or  Forfeiture  as  aforesaid,  it  shall  and  may  be  lawful  to 
and  for  the  Justice  before  whom  such  matter  is  tried  to  order 
Satisfaction  by  Servitude."  "  That  no  minister,  pastor  or  ma- 
gistrate, or  other  person  whatsoever,  who,  according  to  the  laws 
of  this  province,  usually  join  people  in  marriage,  shall  upon  any 
pretence  whatsoever  join  in  marriage,  any  negroe  with  any  white 
person,  on  the  penalty  of  one  hundred  pounds."  Whites  and 
blacks  cohabiting — the  white  shall  pay  a  fine,  and  the  black  be 
sold  as  a  servant.  The  remaining  sections  prescribe  penalties 
for  negroes  absent  from  home  at  night,  &c.     Prov.  L.  c.  288. 

1729,  c.  5.  An  act  for  layinrj  a  duty  on  negroes  imported, 
dc,  rep.  by  1761,  c.  10,  s.  16.— Prov.  L.  c.  297. 

c.  8.  A71  act  layinrj  a  duty  on  Forrcigners  and  Irish 

servants  c&c,  imported  into  this  Province — repealed  by  1729, 
2d  sess.,  c.  7,  s.  9.— Prov.  L.  c.  298. 

1742,  c.  3.  An  act  imposing  a  duty  on  p)(^t'sons  convicted 
of  heinous  crimes  brought  into  this  province,  and  not  loarranted 
by  the  laivs  of  Great  Britain,  &c.  Repealed  by  the  royal 
council. 

1761,  c.  10.  Supplementary  to  an  act  of  1729,  c.  5.  A 
similar  law,  1767-8,  c.  3.  1  Laws  of  the  Commonwealth  of  Pa. 
c.  428,  429. 

1767-8,  c.  3,  continues  the  last  above,  "expired." 

1771,  c.  8.  An  act  supplementary  to  an  act  of  1770,  re- 
specting servants.    1  Laws  Commonw.  Pa.  c.  636. 

1773,  c.  11.  An  act  making  perpetual  the  act  intituled,  An 


LAWS   OF    DELAWARE,  291 

act  for  laying  a  duty  on  negroes  and  mulatto  slaves,  (fee,  and 
laying  an  additional  duty  on  the  said  slaves.  1  Commonw. 
Laws,  c.  692,  (repealed  1780.     Ibid.  c.  881.) 

1776,  June  14. — The  Provincial  Congress  instructed  their 
delegates  in  the  Continental  Congress  to  confer  with  the  other 
colonies  in  political  separation  from  Great  Britain,  "  reserving 
to  the  people  of  this  colony  the  sole  and  exclusive  right  of  regu- 
lating the  internal  government  of  the  same." — Votes  and  Pro- 
ceedings, vol.  vi.,  740, 

§  227.     Legislation  of  Delaware. 

The  territory  occupied  by  the  State  of  Delaware  was  first 
occupied  by  the  Dutch.  ^  Their  claim  had  always  been  denied 
by  the  English,  though  on  the  grant  of  New  Netherlands  to  the 
Duke  of  York,  it  was  occupied  by  his  representatives  as  a  por- 
tion of  his  proprietary  dominion.  In  1682,  Aug.  21,  the  Duke 
ceded  his  territory  to  Penn,  and  it  became  included  in  his  gov- 
ernment.— See  the  "  Act  of  Union,"  in  Votes  and  Proceedings, 
vol.  i.,  p.  3,  and  ante  p.  286,  note. — Delaware  Laws,  ed.  1797,  c.  5. 
•  In  1703,  Penn  surrendered  the  old  form  of  government,  and 
gave  the  Delaware  Counties  the  option  of  a  separate  administra- 
tion, under  "the  Charter  of  Privileges,"  having  a  separate 
legislature,  though  one  Governor  and  Council  with  Pennsyl- 
vania.— Del.  Laws,  ed.  1797,  appendix. 

172L  An  act  for  the  trial  of  Negroes.  Del.  L.  c.  43.  Sec.  1. 
Two  justices  and  six  freeholders  empowered  to  try  "negro  or 
mulatto  slaves  "  accused  of  heinous  offences  specified.  2.  Such 
court  may  determine  and  order  execution.  When  slaves  are 
put  to  death  two-tliirds  of  value  to  be  paid  to  owner.     3,  4. 

'  The  first  settlements  in  this  vici|ity  were  by  the  Swedes  and  Danes,  before  the 
year  1638.  Stevens,  in  Hist,  of  Georgia,  p.  288,  says  that  in  the  Swedish  and  German 
colonies,  founded  on  the  Delaware  by  Gustavus  Adolphus,  it  was  held  "  not  lawful  to 
buy  or  keep  slaves,"  but  gives  no  authority.  In  a  translation  of  the  Danish  Laws  of 
Christian  v.,  published  in  London,  1756,  "for  the  use  of  the  Danish  colonies  in  Ameri- 
ca," ch.  xii.  of  Book  iii.  is  omitted,  since  "  it  regards  viloanage,  consequently  of  no  use 
in  the  American  islands."  But  ch.  xiv..  Of  Bondsmen,  is  given  in  full,  though  such  aa 
arc  there  described  are  bound  to  the  soil,  though  hereditary,  and  could  not  be  sold  or 
removed  by  the  lord.  In  Book  iii.  ch.  ii.,  Of  Privilerjes,  "  Whoever  enjoys  the  privilege 
of  power,  of  life  or  limb  on  his  servants,  or  ecclesiastical  or  civil  patronage,  or  any  other 
privilege  granted  by  the  king,  shall  use  it,  and  shall  not  be  deprived  of  it  on  account 
of  abuse." 


292  LAWS   OF    DELAWARE. 

Duties  of  Sheriflfs,  &c.  5.  Puuishment  for  rape  of  wliite  wo- 
man— standing  on  pillory  and  cutting  off  both  ears.  "6,  7.  Slaves 
forbid  to  carry  arms  ;  negroes  forbid  meeting  in  companies. 

1721.  An  act  against  adultery  and  fornication. — Del.  L.,  c. 
44,  sec.  5.  Servant  women  having  bastards — to  serve  another 
year.  9.  Penalty  on  white  women  that  shall  bear  mulatto 
children.  The  child  to  serve  under  appointment  of  county 
court,  until  the  age  of  thirty-one  years.  (Repealed  1795,  D.  L., 
c.  71.)  10.  Penalty  on  white  men  committing  fornication 
with  negro  or  mulatto  women.  (Fines  and  corporal  punish- 
ment, for  fornication  and  bastardy,  abrogated,  1795,  D.  L., 
c.  108,  s.  7.) 

1739.  An  act  imposing  a  duty  on  persons  convicted  of  hein- 
ous crimes,  and  to  prevent  poor  and  impotent  persons  being  im- 
ported, d'c. — D.  L.,  c.  66. 

An  act  for  the  better  regulation  of  servants  and  slaves 

within  this  Government. — D.  L.,  c.  77.  Sec.  1.  No  indentured 
servant  to  be  sold  into  another  Government  without  the  appro- 
bation of  at  least  one  justice,  &c.  2.  Nor  assigned  over  unless 
before  a  justice.  3.  Nor  indentures  taken,  &c.  4-10.  Pohce 
regulations  regarding  servants,  similar  to  those  of  other  colonies. 
10.  Whoever  manumits  a  slave,  to  give  security,  &c.  11.  The 
children  of  free  negroes  to  be  bound  out  if  their  parents  do  not 
maintain  them.  The  remaining  sections  contain  the  ordinary 
police  regulations  for  slaves. 

1751.  An  act  supplementary  to  the  last. — D.  L.,  c.  129. 

1760-  Another  supplementary  act,  D.  L.,  c.  170.  Sec.  1. 
''  Whereas  the  children  of  white  women  by  negro  or  mulatto 
fathers,  and  the  descendants  of  such  children,  and  negroes  en- 
titled to  their  freedom,  are  frequently  held  and  detained  as  ser- 
vants or  as  slaves,  by  persons  jjrftending  to  be  their  masters 
and  mistresses,  when  they  ought  not  by  the  laws  of  this  govern- 
ment be  so  held  and  detained,  and  frequently  are  sold  as  slaves 
by  such  pretended  masters  or  mistresses  to  persons  who  reside 
in  other  governments,  with  a  fraudulent  design  to  prevent  their 
procuring  proof  of  their  being  entitled  to  their  freedom  ;  and 
whereas  the  laws  of  this  Grovernment  are  defective  in  not  pre- 


LAWS  OF  NORTH  CAROLINA.  293 

scribing  any  mode  for  settling  and  determining  in  a  short  and 
summary  manner  the  claim  or  right  of  any  persons  pretending 
to  be  entitled  to  their  liberty."  2.  Enacts  that  the  courts  of 
Common  Pleas  may,  upon  petition,  summon  the  master  or 
mistress  and  witnesses  before  them,  and,  "  after  hearing  the 
proofs  and  allegations  of  the  parties  in  a  summary  way,"  if  they 
are  satisfied  that  the  person  petitioning  is  entitled  to  freedom, 
shall  discharge  him  or  her  from  the  service,  &c.  3.  Their  judg- 
ment to  be  enforced  by  the  Sheriff.  5.  Provides  a  penalty  for 
sellins:  a  free  man  "  out  of  this  Grovernment." 

1767.  An  act  supplementary  to  the  preceding. — D.  L.,  c. 
188.  Preamble. — "  Whereas  it  is  found  by  experience,  that 
free  negroes  and  mulattoes  are  idle  and  slothful,  and  often  prove 
burdensome  to  the  neighborhood  wherein  they  live,  and  are  of 
evil  example  to  slaves."  Sec.  2.  Piestrains  still  further  the  manu- 
mission of  slaves.  3.  Provides  punishment  for  a  slave  assaulting 
another  slave. 

J  228.  Legislation  of  North  Carolina. 

The  first  legislation   having   territorial  extent  within  the 

limits  of  the  present  States  of  North  and  South  Carolina,  was 

derived  from  certain  Lords  Proprietary,  under  the  charters  of 

1663  and  1665.  ^     Even  before  the  year  1729,  where  the  rights 

'  The  first  permanent  settlements  were  made  by  emigrants  from  Virginia  and  New 
England.  (2  Banc,  131-13G.)  By  the  first  charter,  1GG3,  art.  5,  the  proprietaries 
had  property  in  the  soil  and  supreme  ,legi.'^lative  power  "according  to  their  best  dis- 
cretion and  with  the  advice,  assent  and  approbation  of  the  freemen  of  the  said  prov- 
ince, or  of  the  greater  part  of  them,  or  of  their  delegates  or  deputies,  whom  for  the 
enactment  of  the  said  laws,  &c."  the  proprietaries  were  to  assemble ;  "  provided  nev- 
ertheless that  the  said  laws  be  consonant  to  reason,  and  as  near  as  may  be  conve- 
niently agreeable  to  the  laws  and  customs  of  this  our  kingdom  of  England.''  Art.  7, 
"  that  all  and  singular  the  subjects  and  liege  people  of  us,  &c.,  transported  or  to  be 
transported  into  the  said  province,  and  thc^hildren  of  them  and  of  such  as  shall  de- 
scend from  them,  there  born,  or  hereafter  to  be  born,  be  and  shall  be  denizens  and 
lieges  of  us,  &;c.,  of  this  our  king<lom  of  England,"  &c.,  and  that  they  shall  "possess 
and  enjoy"  "  all  liberties,  francliises  and  privileges  of  this  our  kingdom,  &c." 

The  charttrr  of  1(IG5  has  similar  clauses.     1  S.  C.  Statutes  at  Large,  p.  24,  33. 

The  proprietaries  adopted  John  Locke's  Constitution,  March  1,  1GG9,  of  which  the 
following  articles  are  of  interest,  in  connection  with  the  history  of  slavery  in  Ami'rica  ; 
though  it  may  be  doubted  whether  the  constitution  ever  had  the  force  of  a  law,  not 
having  been  adopted  by  the  local  assembly.  See  1  S.  C.  St.  at  L.,  p.  41  ;  it  was 
definitively  abrogated  in  1693.      1  R.  S.  of  N.  Car.,  Pref.  vii.     It  provided: 

Art.  97.  "But  since  the  natives  of  that  place,  who  will  be  concerned  in  our  plan- 
tation,  are  utterly  strangers  to  Christianity,    whose  idolatry,  ignorance,  or  mistake 


294  LAWS  OF  NORTH  CAROLINA. 

of  the  proprietaries  were  finally  ceded  to  the  crown,  the  north- 
ern and  southern  portions  of  the  territory  constituted  distinct 
jurisdictions,  each  having  a  separate  legislative  assembly.  They 
became  formally  distinguished  as  North  and  South  Carolina,  in 
the  year  1732. 

The  legislative  history  of  North  Carolina  begins  with  the 
year  1669.'  (2  Banc,  151.)  According  to  Iredell's  Laws  of 
N.  C,  from  which  the  following  notes  of  statutes  are  taken,  the 
date  of  the  earliest  extant  laws  is  1715,  of  which  year's  laws, 
0.  31 — An  act  for  the  more  effectual  observing  of  the  Queen's 
peace,  &c.y  sec.  5,  referring  to  the  charter  provision,  states  that 
disputes  often  arise  how  far  the  laws  of  England  are  in  force  ; 
declares,  "  From  thence  it  is  manifest  that  the  laws  of  England 
are  the  laws  of  this  government,  so  far  as  they  are  compatible 
with  our  way  of  living  and  trade."  "  That  the  common  law  is, 
and  shall  be  in  force,"  except  as  to  the  practice  of  courts,  and 
that  all  English  statutes  for  maintaining  the  rights  of  the 
crown,  the  established  Church,  "  and  all  laws  providing  for  the 
privileges  of  the  peoj^le,"  and  certain  others,  shall  be  in  force. 


gives  Tis  no  ri.ijht  to  expel  or  use  them  ill ;  and  those  who  remove  from  other  p.arts  to 
plant  there  will  unavoirLibly  be  of  different  opinions  concerning  matters  of  religion,  the 
liberty  whereof  they  will  expect  to  have  allowed  them,  and  it  will  not  be  reasonable 
for  us  on  this  account  to  keep  them  out ;  that  civil  peace  may  be  obtained  amidst  di- 
versity of  opinions,  and  our  government  and  corrfpact  with  all  men  may  be  duly  and 
faithfully  observed ;  the  violation  whereof,  upon  what  pretence  soever,  cannot  be  with- 
out great  offence  to  Almighty  God,  and  great  scandal  to  the  true  religion  which  wc 
profess ;  and  also  that  Jews,  Heathens  and  other  dissenters  from  the  purity  of  the 
Christian  religion  may  not  be  scared  and  kept  at  a  distance  from  it,  but  by  having  an 
opportunity  of  acquainting  themselves,"  &c. 

Art.  101.  "  No  person  above  seventeen  years  of  age  shall  have  any  benefit  or  pro- 
tection of  the  law,  or  be  capable  of  any  place  of  profit  or  Ijpnor,  who  is  not  a  member 
of  some  Church  or  profession,  having  his  name  recorded  in  sorrite  one,  and  but  one 
religious  record  at  once." 

Art.  107.  "  Since  charity  obliges  us  to  wish  well  to  the  souls  of  all  men,  and  re- 
ligion ought  to  alter  nothing  in  any  man's  (J^il  estate  or  right,  it  shall  be  lawful  for 
slaves  as  well  as  others,  to  enter  themselves,  and  be  of  what  Church  or  profession  any 
of  them  shall  think  best,  and  be  as  fully  member  as  any  freeman.  But  yet  no  slave 
shall  hereby  be  exempted  from  that  civil  dominion  his  master  hath  over  him,  but  be 
in  all  things  in  the  same  state  and  condition  he  was  in  before." 

Art.  110.  "  Every  freeman  of  Carolina  shall  have  absolute  power  and  authority 
over  his  negro  slaves,  of  what  opinion  or  religion  soever." 

For  the  early  legi.«lative  history  of  the  Carolinas,  see  Pref  vol.  1  of  Rev.  St.  of 
North  Car.     Brevard's  Observations.     1  S.  C.  St.at.  at  L.  425-429. 

*  At  this  time,  according  to  1  Williamson's  Hist,  of  N.  C,  122,  n.,  "  Taxables  were 
every  white  male,  aged  sixteen  years ;  and  every  slave,  negro,  mulatto  or  Indian, 
male  or  female,  aged  twelve  yeai:s." — Comp.  ante,  p.  230. 


LAWS  OF  NORTH  CAROLINA.  295 

Ch.  45.  An  act  concerning  servants  and  slaves. — The  title  only 
is  given  in  Iredell's  L.;  margin,  "  Rep.  by  act  April  4,  1741,  c. 
24."  Ch.  59.  An  act  respecting  Indians,  of  which  sec.  5  en- 
acts, that  any  white  man  injuring  an  Indian  "  shall  make  fuU 
satisfaction  to  the  party  injured,  and  shall  suffer  such  other 
punishment  as  he  should  or  ought  to  have  done,  had  the  of- 
fence been  committed  by  an  Englishman."  Ch.  QQ.  An  act 
repealing  all  laws  not  specially  re-enacted. 

1720,  c.  5. — An  act  explaining  the  act  concerning  ser- 
vants and  slaves,  the  title  of  which  only  is  given  by  Iredell,  and 
in  margin,  "  Ecp.  by  Ap.  1741,  c.  24." 

1723,  c.  5. — An  act  for  an  additional  tax  on  all  free  ne- 
groes, mulattos,  mustees,  and  such  persons,  male  or  female,  as 
now  or  hereafter  shall  he  intermarried  with  any  such  'persons 
resident  in  this  government.  The  title  only  given  ;  margin, 
Eep.  by  acts,  1741,  c.  24  :  1760,  c.  2. 

1741,  c.  1.  Act  concerning  marriages. — Sec.  13.  That 
wliite  persons' intermarrying  with  any  negro,  mustee,  or  mulatto 
man  or  woman,  or  any  person  of  mixt  blood  to  the  thu-d  gener- 
ation, bond  or  free,  "  shall  pay  fifty  pounds  forfeit." 

c.  24.  An  act  concerning  servants  and  slaves,  does 

not  declare  who  are  or  shall  be  slaves  ;  relates  to  treatment  of 
indentured  servants,  and  the  police  regulations  for  slaves 
most  common  in  the  various  colonies.  Sec.  13,  provides  for 
extension  of  the  term  of  service  of  white  servant  women  having 
bastard  children';  if  by  a  negro,  &c.,  such  children  shall  be 
bound  out  until  thirty-one  years  of  age.  19.  Mentions  a  pe- 
culiar class  of  servants  imported,  being  tradesmen  or  workmen 
in  some  art,  receiving  wages,  yet  bound.  45.  Such  runaways 
may  be  declared  outlawed,  and  thereupon  lawfully  killed  by  any 
person.  46.  The  conspiracy  of  three  slaves  made  a  felony.  5Q. 
That  no  negro  or  mulatto  slaves  shall  be  set  free  upon  any  pre- 
tence whatsoever,  except  for  meritorious  services,  to  be  adjudged 
by  the  county  court  and  license  thereupon. 

1749,  c.  6.  An  act  confirming,  on  revision,  certain  former 
acts,  among  which  the  acts  of  1723  and  1741  above  mentioned. 

1753,   c.  6.   An   additional   act   concerning   servants   and 


296  LAWS    OF    NORTH    CAROLINA. 

slaves,  principally  providing  for  searching  the  houses  of  slaves  for 
arms  and  stolen  goods.  Sec.  9.  Allowance  for  slaves  executed. 
(Rep.  by  1786,  c.  17.)  10.  That  if  slaves,  not  being  clothed 
and  fed  according  to  the  intent  of  this  act,  shall  steal  corn,  cattle, 
or  goods,  their  owners  shall  be  liable  in  damages  to  the  person 
losing  the  same. 

1758,  c.  7.  Another  additional  act  as  above,  the  title  only 
given  ;  margin,  "  Rep.  by  act,  1764,  c.  8,  and  1786,  c.  17." 
By  the  former  of  these  repealing  acts  it  appears  that  the  act  in 
part  provided  that  no  male  slave  should,  for  the  first  ofiencc, 
be  condemned  to  death,  unless  for  murder  or  rape,  but  for  every 
other  capital  crime  should,  for  the  first  oftence,  sufier  castigation. 
The  other  sections  j)rovide  compensation  to  the  owners  of  slaves 
executed  for  crimes.  The  act  of  1786,  repealing  these,  recites, 
"  Whereas  many  persons,  by  cruel  treatment  to  their  slaves, 
cause  them  to  commit  crimes  for  which  many  of  said  slaves  are 
executed,  Avhereby  a  very  burthensome  debt  is  unjustly  imposed 
on  the  good  citizens,"  &c. 

1774,  c.  31.  An  act  to  prevent  the  luilful  and  malicious 
killing  of  slaves,^  provides  for  the  first  ofi'ence,  twelve  months' 
imprisonment,  and  for  the  second,  death  without  clergy  ;  the 
offender  to  pay  to  the  owner  the  value  of  the  slave.  Proviso, 
that  the  act  does  not  extend  to  outlawed  slaves.  See  the  act 
of  1791,  on  this  matter,  and  State  v.  Boon,  Taylor's  N.  C.  R. 
252. 

1775,  May  19.  The  so-called  "  Mecklenburg  Declaration  of 
Independence,"  in  the  name  of  "  the  citizens  of  Mecklenburg 
county."  See  the  history  of  this  in  Rev.  St.  of  N.  C.  vol.  i.  p.  5.  ; 
from  its  insertion  in  this  publication  it  may  be  taken  to  have 
been  adopted  by  the  State  as  its  own  public  act. 

^  State  I'.  Reed,  2  Hawks'  R.  454.  An  indictment  for  the  murder  of  a  nlave,  which 
conchides  at  common  law  is  good.  State  v.  Hale,  2  Hawks'  R.  582.  An  indictment 
■will  lie  at  common  law  for  hattery  of  a  slave  by  a  stranger,  i.  e.,  not  owner  or  hirer ; 
comp.  State  v.  Mann,  2  Devereux  R.  263.  In  Tate  v.  6'Neil,  1  Hawks'  R.  418,  held, 
that  patrols  are  not  liable  to  the  master  for  inflicting  punishment  on  his  slave,  unless 
their  conduct  demonstrates  malice  against  the  master. 


laws  of  south  carolina.  297 

§  229.  Legislation  of  South  Carolina. 

Among  the  titles  preserved  in  Trott's  Laws  of  S.  C.  pp.  1,  2,  3, 
of  certain  early  colonial  acts,  wliich  are  not  now  to  be  found,  is 
one  dated 

1682  or  1683,  entitled  An  act  inhihitlng  the  tradirig  with 
servants  or  slaves.  This  act  was  probably  temporary,  but  was 
renewed  by  various  acts,  anterior  to  the  revisory  and  now  extant 
slave  law  of  1712.  See  2  Statutes  at  Large,  Introd.  p.  5,  and 
pp.  22,  52,  73,  118,  also.  An  act  for  servants  arriving  tvithout 
indentures  or  contracts,  and  an  act  to  prevent  runaioays. — 2 
Stat.  Introd.  p.  5. 

1687.  An  act  for  servants  hereafter  arriving  ivlthout  in- 
dentures or  contracts. — 2  Stat.  L.  p.  30. 

1690.  A71  act  for  the  better  ordering  of  slaves. — 7  St.  at  L. 
342.  Sec.  1.  Police  regulations  for  negro  or  Indian  slaves,  pro- 
vides for  passes  or  tickets.  Penalty  for  neglect  to  apprehend 
and  punish  runaways  ;  punishment  of  such  slaves  "  offering  any 
violence."  2.  "  That  all  slaves  shall  have  convenient  clothes 
once  every  year,"  and  that  no  slave  "  shall  be  free  by  becoming 
a  Christian,"  that  slaves  shall  be  deemed  "  as  other  goods  and 
chattels  "  as  to  payment  of  debts,  but  "  shall  be  accounted  as 
freehold  in  all  other  cases,  and  descend  accordingly."  3,  4,  6,  9. 
For  the  detention,  treatment,  &c.,  of  runaways.  5.  Houses  of 
slaves  to  be  searched  for  arms,  &c.,  and  stolen  goods.  7.  Pen- 
alty for  attempting  to  steal  or  carry  off  any  slaves  the  act  made 
a  felony.  8,  10,  11.  Provide  for  the'  trial  and  punishment  of 
slaves,  by  a  justice  and  three  freeholders,  for  crimes,  misde- 
meanors, and  insurrections.  12.  "  That  if  any  slave,  by  pun- 
ishment from  the  owner  for  running  away  or  other  offence,  shall 
suffer  in  life  or  limb,  no  person  shall  be  liable  to  the  law  for  the 
same  ;  but  if  any  one  out  of  wilfulness,  wantonness,  or  bloody- 
mindedness,  shall  kill  a  slave,  "  shall  suffer  three  months'  im- 
prisonment," and  pay  fifty  pounds  to  the  owner  ;  no  person 
liable  for  killing  a  slave  stealing  by  night  in  his  house,  &c. 

This  act  appears  to  have  been  temporary,  but  in  substance 
re-enacted  by  various  acts  until  the  law  of  1712.  See  2  Stat, 
at  L.  pp.  49,  78,  121,  156,  182. 


298  LAWS   OF    SOUTH    CAROLINA.  ^ 

1697.  An  ad  for  the  making  aliens  free  of  this  jjart  of  this 
province  and  for  granting  lihertij  of  conscience  to  all  Prot- 
estants.— 2  St.  at  L.  131.  The  first  section  extends  the  rights 
and  privileges  "  of  persons  born  of  English  parents  "  to  all  alien 
inhabitants  ;  but  by  the  seventh  its  extent  seems  limited  to 
certain  French  Protestants.  An  act  of  1691,  2  St.  at  L.  58, 
also  naturalizes  certain  of  this  class  of  aliens. 

1698.  An  act  for  the  encouragement  of  the  importation  of 
white  servants. — 2  St.  at  L.  153,  recites,  "  whereas  the  great 
number  of  negroes,  which  of  late  have  been  imported  into  this 
colony  may  endanger  the  safety  thereof,  if  speedy  care  be  not 
taken  and  encouragement  given  for  the  importation  of  white 
servants." 

1701.  An  act  for  the  j^revention  of  runaivays  deserting  this 
government. — 2  St.  at  L.  180.  This  applies  to  all  domiciled 
persons. 

1703.  An  act  laying  duties,  2  St.  at  L.  200.  Sees.  4,  5, 
designate  the  duty  to  be  paid  on  negro  slaves  imported,  and  on 
Indian  slaves  exported.  Further  explained  by  act  of  1706, 
2  St.  at  L.  280. 

1704.  An  act  to  regulate  elections,  2  St.  at  L.  249.  Sec.  1, 
provides  a  property  qualification  for  voters,  but  no  distinction  of 
race  is  mentioned.  Another  act  making  aliens  free  of  this  part 
of  the  province, — 2  St.  at  L.  251.  Another  for  raising  and 
enlisting  such  slaves  as  shall  be  thought  serviceable  to  this  prov- 
ince in  time  of  alarms. — 7  St.  at  L.  349,  continued  by  later 
acts  up  to  the  act  of  1712. 

1712.  An  act  to  put  in  force  in  this  province  the  several 
statutes  of  the  kingdom  of  England,  or  South  Britain,  therein 
particularly  mentioned. — 2  St.  at  L.  p.  401.  In  sec.  5,  "  that  all 
and  every  part  of  the  common  law  of  England,  where  the  same 
is  not  altered  by  the  above  enumerated  acts,  or  inconsistent  with 
the  particular  constitutions,  customs,  and  laws  of  this  province, 
excepting  so  much  thereof  as  hath  relation  to  the  ancient  ten- 
ures which  are  taken  away,  &c.,  is  hereby  enacted  and  declared 
to  be  of  as  fuU  force  in  this  province  as  if  particularly  enumer- 
ated by  this  act,  &c."     Among  the  acts  named  are  the  great 


LAWS    OF    SOUTH    CAROLINA.  299 

charter,  9  Hen.  3.  c.  29,  which  is  recited,  "  no  freeman  shall  be 
taken,"  &c.  The  Habeas  Corpus  Act,  31  Car.  2,  is  not  among 
the  acts  named.  As  to  the  law  of  slavery  co-existent  with  the 
law  of  England  in  the  colony,  compare  White  v.  Chambers 
(1796),  2  Bay's  R.  74. 

1712.  An  act  for  the  letter  ordering  and  governing  cf  ne- 
groes and  slaves. — 7  St.  at  L.  352.  "  Whereas  the  plantations  and 
estates  of  this  province  cannot  be  well  and  sufficiently  managed 
and  brought  into  use  without  the  labor  and  service  of  negroes 
and  other  slaves  ;  and  forasmuch  as  the  said  negroes  and  other 
slaves  brought  unto  the  people  of  this  province  for  that  purpose 
are  of  barbarous,  wild,  savage  natures,  and  such  as  renders  them 
wholly  unqualified  to  be  governed  by  the  laws,  customs,  and 
practices  of  this  province  ;  but  that  it  is  absolutely  necessary  that 
such  other  constitutions,  laws  and  orders  should  in  this  province 
be  made  and  enacted  for  the  good  regulating  and  ordering  of 
them,  as  may  restrain  the  disorders,  rapines,  and  inhumanity  to 
which  they  are  naturally  prone  and  inclined,  and  may  also  tend 
to  the  safety  and  security  of  the  people  of  this  province  and 
their  estates,  to  which  purpose 

1.  ^^ Be  it  enacted,  (kc,  that  all  negroes,  mulattoes,  mestisoes, 
and  Indians,  which  may  at  any  time  heretofore  have  been  sold, 
or  are  now  held  or  taken  to  be,  or  hereafter  shall  be  bought  and 
sold  for  slaves,  are  hereby  declared  slaves,  and  they  and  their 
children  are  hereby  made  and  declared  slaves  to  all  intents  and 
purposes,  excepting  all  such  negroes,  mulattoes,  mustizoes,  or 
Indians,  which  heretofore  have  been,  or  hereafter  shall  be,  for 
some  particular  merit,  made  and  declared  free  either  by  the 
governor  and  council  of  this  province,  pursuant  to  any  act  or 
law  of  this  province,  or  by  their  respective  owners  or  masters, 
and  also  excepting  all  such  negroes,  mulattoes,  mustizos,  or  In- 
dians as  can  prove  that  they  ought  not  to  be  sold  for  slaves. 
And  in  case  any  negro,  mulattoe,  mustizoe  or  Indian,  dotli  lay 
claim  to  his  or  her  freedom,  upon  all  or  any  of  the  said  accounts, 
the  same  shall  be  officially  heard  and  determined  by  the  gov- 
ernor and  council  of  this  province."  Sees.  2,  3,  re-enact  provi- 
sions ol  the  act  of  1690,  respecting  runaways  and  searches  for 


300  LAWS   OF    SOUTH    CAROLINA. 

arms  and  stolen  goods.  4.  Against  trading  with  slaves.  5,  6.  For- 
bidding to  slaves  use  and  access  to  fire-arms.  7,  8.  Against 
meetings  of  slaves  in  and  about  Charleston.  9,  10,  12,  18.  Pro- 
visions for  the  trial  of  slaves,  similar  to  those  in  the  act  of  16U0, 
and  for  new  modes  of  punishment.  11.  Penalty  on  owners  for 
sending  away  slaves  who  have  committed  felonies.  13.  Regu- 
lating the  admission  of  tlie  evidence  of  slaves  against  other 
slaves.  14.  "  Wliereas  divers  evil  and  ill-disposed  persons  have 
hitherto  attempted  to  steal  away  negroes  or  other  slaves,  by 
specious  pretence  of  promising  them  freedom  in  anotlier  country, 
against  which  pernicious  practice  no  punishment  suitable  hath 
yet  been  provided,"  provides  punishment  of  the  attempt  by  a 
fine,  &c.,  and  makes  the  act  a  "felony  without  benefit  of  clergy, 
and  the  offender  shall  suffer  death  accordingly."  15.  "  That  in 
case  any  negro  or  slave  shall  run  from  his  master  or  mistress, 
with  intent  to  go  off  from  this  province,  in  order  to  deprive  his 
master  or  mistress  of  his  service,  such  negro  or  slave  shall,  on 
conviction,  suffer  death  ;"  provides  for  punishment  of  slaves  en- 
ticing other  slaves  to  run  away.  16.  Provides  for  payment  to 
the  owners  of  slaves  suffering  death  for  crimes.  17.  Punishment 
of  slave  striking  or  injuring  any  "  Christian  or  white  jierson." 
19.  Various  new  punishments  for  slaves  running  a^vay  for  the 
first  and  other  times.  20-27.  Various  provisions  for  the  arrest 
and  treatment  of  runaway  slaves.  28,  29.  Restraining  owners 
in  granting  liberties  to  slaves  and  in  their  mode  of  employing 
them.  30.  Similar  to  sec.  12,  of  the  act  of  1690.  31-33.  De- 
tailed provisions  for  the  better  enforcement  of  this  act.  34.  Pro- 
vides "since  charity  and  the  Christian  religion,  which  we  profess, 
oblige  us  to  wish  well  to  the  souls  of  all  men,  and  that  religion 
may  not  be  made  a  pretence  to  alter  any  man's  property  and  right, 
and  that  no  persori  may  neglect  to  baj)tize  their  negroes  or  slaves 
or  suffer  them  to  be  baptized,  for  fear  that  thereby  they  should 
be  manumitted  and  set  free," — "  it  shall  be  and  is  hereby  de- 
clared lawful  for  any  negro  or  Indian  slave,  or  any  other  slave 
or  slaves  whatsoever,  to  receive  and  profess  the  Christian  faith, 
and  to  be  therein  baptized  ;  but  that'  notwithstanding  such 
slave  or  slaves  shall  receive  or  profess  the  Christian  religion  and 


LAWS    OF    SOUTH    CAROLINA.  301 

be  baptized,  he  or  tlioy  shall  not  thereby  be  manumitted  or  set 
free,  or  liis  or  their  owner,  master,  or  mistress  lose  his  or  their 
civil  right,  jiropcrly,  and  authority  over  such  slave  or  slaves, 
but  that  the  slave  or  slaves,  with  respect  to  his  servitude,  shall 
remain  and  continue  in  the  same  state  and  condition  that  he  or 
they  were  in  before  the  making  of  this  act." 

1714 — A71  additional  act  to  the  above,  7  St.  at  L.,  365, 
sec.  1,  to  facilitate  punishment  of  slaves,  gives  to  two  justices 
and  one  freeholder,  certain  of  the  powers  formerly  vested  in  two 
justices  and  three  freeholders.  2.  Other  of  such  powers  given  to 
a  justice  and  two  freeholders.  3.  Compensation  of  marshal  in 
certain  cases.  4.  Limits  the  amount  to  be  paid  for  slaves  exe- 
cuted for  crime.  5.  Keciting  that  "  the  executing  of  several 
negroes  for  felonies  of  a  smaller  nature  "  has  been  a  great  charge, 
enacts  that  except  for  murder,  slaves  condemned  shall  be  trans- 
ported, &c.  6.' Punishment  of  slave  for  striking — discretionary 
with  the  judge,  and  the  oath  of  the  person  struck,  made  suffi- 
cient to  convict.  7,  8.  Eespecting  dealing  with  slaves,  stolen 
goods,  &c.  9,  10.  "  And  Avhereas  the  number  of  negroes  do 
extremely  increase  in  this  23rovince,  and  through  the  afflicting 
Providence  of  God,  the  white  persons  do  not  proportionably 
multiply,  by  reason  whereof  the  safety  of  the  said  province  is 
greatly  endangered,"  &c.,  provides  additional  duties  or  importa- 
tion. 11.  That  slaves  shall  not  be  allowed  to  jilant  for  them- 
selves certain  articles  or  keep  stock. 

1716. — A7i  act  to  encourage  the  importation  of  loMte  ser- 
vants into  this  2^^'ovince.  2^  Stat,  at  L.,  646.  An  act,  dc, 
duties  on  negroes  imported,  Ibid.,  651,  sees.  3,  4,  5.  An  actio 
keep  inviolate  the  freedom  of  elections,  <&c.  2  St.  at  L.,  683,  sec. 
20  :  qualifications  of  voters,  "that  every  white  man,  and  no  other, 
professing  the  Christian  religion,"  being  of  age  and  having  cer- 
tain property,  may  vote. 

1717. — An   act  for  the   better  governing  and  regulating 

'  See  the  abstract  of  this  act  in  2  Hildr.  p.  271,  27.'> ;  the  author  observes  here  : 
"Then,  as  now,  the  legality  of  this  legislation  seems  open  to  some  question,"  refer- 
ring to  the  charter  provision  that  local  laws  should  not  be  repugnant  to  the  laws  of 
England.     Compare  a/i^c,  §  214. 


302  LAWS   OF   SOUTH   CAROLINA. 

white  servants.  2  St.  at  L.,  14,  contains  provisions  similar  to 
those  of  Virginia  and  other  colonics.  Sec.  21  provides  punish- 
ment of  limited  servitude  for  white  women  having  children  by 
negroes,  and  the  same  i)enalty  for  white  men  begetting  chil- 
dren by  blacks  ;  the  issue  to  be  servants  for  limited  times. 

1717. — A  further  additional  act,  &c.  7  St.  at  L.,  368, 
contains  new  provisions  for  compensation  of  the  owners  of  slaves 
executed,  and  increases  the  import  duty. 

1719 — Another  act  laying  duties  on  negroes,  &c.  2 
St.  at  L.,  57,  69. 

1722, — An  act  for  the  better  ordering,  dec. 

1735 — An  act  under  the  same  title.  7  St.  at  L.,  371, 
385.  These  acts,  with  great  minuteness  of  detail,  extend  and 
re-enact  the  provisions  of  the  former  acts.  Sec.  22  of  the  first 
act  recites,  "  whereas,  there  is  sometimes  reason  to  suspect  that 
slaves  do  run  away  for  want  of  a  sufficient  allowance  of  provi- 
sions," gives  power  to  justices  to  inquire,  and  enacts  a  penalty. 
Sec.  1  of  the  act  of  1735,  declaring  who  shall  be  slaves  in  terms 
similar  to  sec.  1  of  1712,  "  in  case  any  negro,  mulatto,  mustee 
or  Indian  doth  or  shall  lay  claim  to  his,  her,  or  their  freedom, 
upon  all  or  any  of  the  said  acts  or  otherwise,  the  same  shall  be 
finally  heard  and  determined  before  the  judges  and  justices  of 
the  Court  of  General  Sessions,  assize  and  gaol-delivery  in  this 
province,  in  open  court,  at  the  sitting  of  the  same  by  a  verdict 
of  twelve  men,  and  not  otherwise."  Sec,  35  requires  provi- 
sion to  be  made  for  the  departure  out  of  the  province  of  manu- 
mitted slaves,  &c.  36.  Limits  the  quality  of  apparel  to  be  fur- 
nished to  slaves. 

1737. — An  act  for  estahlishing  and  regulating  patrols,  3 
St.  at  L.,  456,  recites  the  object  of  keeping  in  order  ^the 
"  negroes  and  other  slaves." 

1738 — An  act  respecting  pedlers,  and  against  their  dealing 
with  slaves.     3  St.  at  L.,  487. 

1740. — For  the  better  ordering  and  governing  negroes  and 
other  slaves  in  this  province.  7  St.  at  L.,  p.  397.  Where- 
as, in  his  majesty's  plantations  in  America  slavery  has  been  in- 
troduced and  allowed,  and  the  people  commonly  called  negroes, 


LAWS  OF  SOUTH  CAROLINA.  303 

Indians,  mulattoes  and  mustezoes  have  been  deemed  absolute 
slaves  and  the  subjects  of  property  in  the  hands  of  particular 
persons,  the  extent  of  whose  power  over  such  slaves  ought  to  be 
settled  and  limited  by  positive  laws,  so  that  the  slave  may  be 
kept  in  due  subjection  and  obedience,  and  the  owners  and 
other  persons  having  the  care  and  government  of  slaves  may  be 
restrained  from  exercising  too  great  rigor  and  cruelty  over 
them,  and  that  the  public  peace  and  order  of  this  province  may 
be  preserved  ;  we  ])va,j  your  most  sacred  majesty  that  it  may 
be  enacted. 

•  "  And  be  it  enacted,  dc. — That  all  negroes  and  Indians,  (free 
Indians  in  amity  with  this  government,  and  negroes,  mulattoes 
or  mustezoes,  who  are  now  free,  excepted,)  mulattoes  or  mus- 
tezoes who  now  are,  or  shall  hereafter  be  in  this  province,  and 
all  their  issue  and  offspring,  born  or  to  be  born,  shall  be  and 
they  are  hereby  declared  to  be,  and  remain  forever  hereafter 
absolute  slaves,  and  shall  follow  the  condition  of  the  mother, 
and  shall  be  deemed,  held,  taken,  reputed  and  adjudged  in  law 
to  be  chattels  personal,  in  the  hands  of  their  owners  and  pos- 
sessors and  their  executors,  administrators  and  assigns,  to  all 
intents,  constructions  and  purposes  whatsoever  ;  provided  al- 
ways, that  if  any  negro,  Indian,  mulatto  or  mustezo  shall  claim 
his  or  her  freedom,  it  shall  and  may  be  lawful  for  said  negro, 
Indian,  mulatto  or  mustezo,  or  any  person  or  persons  whatso- 
ever, on  his  or  her  behalf,  to  apply  to  the  justices  of  his  majes- 
ty's Court  of  Common  Pleas  by'petition  or  motion,  either  during 
the  sitting  of  the  said  court,  or  before  any  of  the  justices  of  the 
same  court  at  any  time  in  the  vacation  ;  and  the  said  court  or 
any  of  the  justice's  thereof,  shall,  and  they  are  hereby  fully  im- 
powered  to  admit  any  person  so  applying  to  be  guardian  for 
any  negro,  Indian,  mulatto  or  mustezo,  claiming  liis  or  her,  or 
their  freedom ;  and  such  guardians  shall  be  enabled,  entitled 
and  capable  in  law,  to  bring  an  action  of  trespass  in  the  nature 
of  ravishment  of  ward,  against  any  person  who  shall  claim  prop- 
erty in,  or  who  shall  be  in  possession  of  any  such  negro,  Indian, 
mulatto  or  mustezo  ;  and  the  defendant  shall  and  may  plead  the 
general  issue  on  such  action  brought,  and  the  special  matter 


304  LAWS   OF   SOUTH   CAROLINA. 

may  and  s]iall  be  given  in  evidence,  and  upon  a  general  or  spe- 
cial verdict  found,  judgment  sliall  be  given  according  to  the 
very  right  of  the  cause,  without  having  any  regard  to  any  de- 
fect in  the  proceedings,  either  in  form  or  substance  ;  and  if 
judgment  shall  be  given  for  the  plaintiff,  a  special  entry  shall 
be  made  declaring  that  the  ward  of  the  plaintiff  is  free,  and  the 
jury  shall  assess  damages  which  the  jilaintiff's  ward  hath  sus- 
tained, and  the  court  shall  give  judgment  and  award  execution 
against  the  defendant  for  such  damage,  with  full  costs  of  suit  ; 
but  in  case  judgment  shall  be  given  for  the  defendant,  the  said 
court  is  hereby  fully  imj^owered  to  inflict  sucli  corporal  p\mish-» 
ment,  not  extending  to  life  or  limb  on  the  ward  of  the  plaintiff 
as  they  in  their  discretion  shall  think  fit  ;  j^^'ovidcd  ahvays, 
that  in  any  action  or  suit  to  be  brought  in  pursuance  of  the 
direction  of  this  act,  the  burthen  of  the  proof  shall  lay  on  the 
plaintiff ;  and  it  shall  be  always  presumed  that  every  negro, 
Indian,  mulatto  and  mustezo  is  a  slave,  unless  the  contrary  can 
be  made  to  appear,  the  Indians  in  amity  with  this  government 
excepted,  in  which  case  the  burthen  of  the  proof  shall  be  on 
the  defendant  ;  provided  also,  that  nothing  in  this  act  shall  be 
construed  to  hinder  or  restrain  any  other  court  of  law  or  equity 
in  this  province,  from  determining  the  property  of  slaves  or 
their  right  to  freedom,  wliich  now  have  cognizance  or  jurisdic- 
tion of  the  same,  when  the  same  shall  happen  to  come  in  judg- 
ment before  such  courts,  or  any  of  them,  always  taking  this  act 
for  their  direction  therein,"  Sec.  2.  The  defendant  required  to 
give  recognizance.  3.  No  slave  to  be  absent  from  home  with- 
out a  ticket.  4.  Penalty  for  unauthorizedly  giving  a  ticket. 
5.  Slave,  without  ticket,  how  dealt  with  ;  provides  that  if  such 
"  shall  refuse  to  submit  to  the  examination  of  any  white  person, 
it  shall  be  lawful  for  any  such  white  person  to  apprehend  and 
moderately  correct  such  slave,  and  if  any  such  slave  shall  as- 
sault and  strike  such  white  person,  such  slave  may  be  lawfully 
killed."  6.  Penalty  for  improperly  beating  a  slave  ;  that  is, 
beating  by  other  than  the  master,  and  while  lawfully  employed  : 
a  pecuniary  fine  with  power  to  commit  until  paid.  7.  Assem- 
blages of  slaves  to  be  dispersed,  their  houses  searched  for  arms. 


LAWS   OF   SOUTH   CAROLINA.  305 

&c.  8.  Persons  damaged  in  taking  runaway  slaves,  to  be  re- 
munerated. 9.  How  slaves  are  to  be  tried  for  capital  oflfences  ; 
by  two  justices  and  three  freeholders,  &c.,  one  justice  may  issue 
warrant  of  commitment.  The  trial  to  be  within  three  days 
after  the  apprehending  of  such  slave.  The  said  justices,  &c., 
shall,  after  hearing  evidence  for  and  against,  &c.,  finally  "  hear 
and  determine  the  matter  brought  before  tliem,  in  the  most 
summary  and  expeditious  manner  ;  and  in  case  the  offender 
shall  be  convicted  of  any  crime  for  which  by  law  the  offender 
ought  to  suffer  death,  the  said  justices  shall  give  judgment, 
and  award,  and  cause  execution  of  their  sentence  to  be  done  by 
inflicting  such  manner  of  death  and  at  such  time  as  the  justi- 
ces, by  and  with  the  consent  of  the  freeholders  shall  direct,  and 
which  they  shall  judge  will  be  most  effectual  to  deter  others 
from  offending  in  the  like  manner."  10.  Trial  for  offences  not 
capital,  by  one  justice  and  two  freeholders  ;  the  judgment  to  be 
"for  the  inflicting  any  corporal  punishment,  not  extending  to 
the  taking  away  life  or  member,  as  he  and  they  in  their  discre- 
tion shall  think  fit  ;  and  shall  award  and  cause  execution  to  be 
done  accordingly,"  11.  What  shall  be  a  quorum  of  the  court 
in  the  foregoing.  12.  The  oath  to  be  administered  to  such  jus- 
tices, &c.  13.  "  That  not  only  the  e\'idence  of  all  free  Indians, 
without  oath,  but  the  evidence  of  any  slave  without  oath, 
shall  be  allowed  and  admitted  in  all  causes  whatsoever, 
for  or  against  another  slave  accused  of  any  crime  or  offence 
whatsoever  ;  the  weight  of  which  evidence  being  seriously 
considered  and  compared  with  all  other  circumstances  at- 
tending the  case,  shall  be  left  to  the  conscience  of  the  justices 
and  freeholders."  14.  The  same  provisions  for  trial  of  slaves 
made  applicable  to  free  negroes,  &c.  15.  Slaves  convicted  of 
felonies  to  suffer  death,  the  manner  according  to  the  direction 
of  the  justices  and  freeholders.'  ,.16.  Certain  crimes  declared 
felony,  committed  by  slaves,  free  negroes,  &c.,  burning  articles, 
the  product  of  the  province,  stealing  slaves  to  carry  out  of  the 
province,   poisoning  any  person.     17.  Homicide  and  insurrec- 

'  The  existence  of  laws  for  the  trial  of  negroes,  similar  to  that  contained  in  the 
preceding  sections,  should  be  considered  in  reading  the  newspaper  reports  of  such  tri- 
als, which  often  appear  therein,  like  acts  of  lawless  assembhos. 
20 


306  LAWS   OF    SOUTH    CAROLINA. 

tion  punishable  with  death.  18.  Compensation  to  owners  of  slaves 
executed.  19.  Justices  may  compel  any  to  give  eWdence.  20. 
Penalty  for  concealing  accused  slave.  21.  Duties  of  consta- 
bles. 22.  Penalty  for  working  on  Sunday.  23.  Slaves  not  to 
carry  fire-arms  without  a  ticket.  24.  Slaves  who  strike  a  white 
person,  how  to  be  dealt  with.  25.  Runaway  slaves,  how  to  be 
disposed  of  26.  The  duty  of  tlie  wardens  of  the  work-liouses. 
27.  Proceedings  when  apprehended  runaway  slave  is  delivered 
to  warden,  &c.  28.  Slaves,  in  custody  eighteen  months,  to  be 
sold.'  29.  Penalty  on  free  negroes  or  slaves  for  harboring 
runaways.  30,  31.  Slaves  in  Charleston  not  to  buy  or  sell  ex- 
cept, &c.  32,  33.^1lespecting  selling  liquors  and  giving  tickets 
of  leave  to  slaves.  34.  Prohibits  slaves  from  trading  or  keep- 
ing boats,  horses,  cattle,  &c.  35.  Slaves  allowed  to  buy  and 
sell  provisions,  &c.,  .with  a  ticket.  36.  Not  to  be  absent,  or  to 
keep  arms,  horns,  &c.  37.  "  And  whereas,  cruelty  is  not  only 
highly  unbecoming  those  who  profess  themselves  Christians, 
but  is  odious  in  the  eyes  of  all  men  who  have  any  sense  of 
virtue  or  humanity  ;  therefore  to  restrain  and  j^revent  barbarity 
being  exercised  towards  slaves."  That  if  any  person  shall 
"  wilfully  murder  "  his  own  or  another's  slave,  he  shall  on  con- 
viction, forfeit  seven  hundred  pounds,  current  money,  and  be 
incapable  of  holding  office,  &c.  In  case  of  inability  to  pay,  to 
be  kept  at  hard  labor  in  the  work-house,  &c.,  for  seven  years. 
If  any  person  shall,  on  sudden  heat  and  passion,  or  by  undue 
correction,  kill  his  own  slave,  or  another's,  he  shall  forfeit  three 
hundred  and  fifty  pounds.*  For  mutilation,  &c.,  or  "  cruel  pun- 
ishment, other  than  by  beating  with,"  <S:c.,  &c.,  the  forfeiture  of 
one  hundred  pounds.     38.  Slaves  to  be  provided  with  sufficient 

^  Many  of  tlie  provisions  in  the  laws  of  the  various  States  applying  to  runaways, 
may,  with  greater  strictness  m  tlie  usage  of  language,  be  said  to  apply  to  negroes  who 
are  either  not  proved  to  belong  to  some  owner,  or  who  cannot,  when  arrested,  prove 
that  they  are  not  slaves,  or  their  right   to  freedom.     Compare  Stroud,  2d  ed.  p.  131. 

'  State  V.  Gee,  1  Bay's  R.,  164,  (1791,)  by  counsel  for  the  State — "  the  frequency 
of  the  ofifence  owing  to  the  nature  of  the  punishment."  Stater.  Fleming,  (1847), 
2  Strobhart's  R.,  464,  a  case  under  a  later  act,  (1821,)  it  was  held  that  an  indict- 
ment does  not  lie  at  common  late  for  the  homicide  of  a  slave  ;  it  is,  in  S.  C,  purely  a 
statutory  ofifence.  Compare  Stroud,  p.  63.  In  White  v.  Chambers,  (1796,)  2  Bay's 
R.  70,  an  action  by  the  master  for  battery  of  tlie  slave  by  a  stranger,  will  lie  under 
the  customary  law  of  the  province  and  State ;  even,  it  •would  seem,  when  there  is  no 
proof  of  a  consequent  loss  of  service. 


LAWS   OF    SOUTH    CAROLINA.  307 

clothing  and  food,  under  penalty.'  39.  "Whereas,  by  reason 
of  the  extent  and  distance  of  plantations  in  this  province,  the 
inhabitants  are  far  removed  from  each  other,  and  many  cruel- 
ties may  be  committed  on  slaves,  because  no  white  person  may 
be  present  to  give  evidence  of  the  same,"  &c.,  enacts  that  if  any 
slave  shall  suffer  in  life,  limb  or  member,  or  be  maimed,  &c., 
contrary  to  the  meaning  of  the  act,  and  no  white  person  able  or 
willing  to  give  evidence,  then  the  owner  or  person  having  the 
care  of  such  slave,  is  to  be  deemed  guilty  of  the  offence,  unless 
such  owner  or  other  person  can  make  the  contrary  appear  by 
evidence,  "  or  shall,  by  his  own  oath,  clear  and  exculpate  him- 
self," wliich  oath  shall  discharge,  ''  if  clear  proof  of  the  offence 
be  not  made  by  two  witnesses  at  -least."^  40.  Appeal  to  be 
given  to  slaves,  its  quality  limited.  41.  Against  firing  guns  at 
night.  42.  Slaves  are  not  to  rent  houses  or  plantations.  43. 
Nor  travel  on  the  highway  in  numbers.  44.  "  And  whereas, 
many  owners,  &c.,  do  confine  them  so  closely  to  hard  labor,  that 
they  have  not  sufficient  time  for  natural  rest," — that  if  any 
shall  work  slaves  "  more  than  fifteen  hours  in  twenty-four, 
from  March  to  September,  and  fourteen  hours  in  twenty-four 
from  September  to  March,"  they  shall  forfeit  a  sum  not  over 
twenty  and  not  under  five  pounds.  45.  "And  whereas,  the 
having  slaves  taught  to  write,  or  suffering  them  to  be  employed 
in  writing,  may  be  attended  with  great  inconveniences," — that 
any  person  who  shall  teach  any  slave  to  write  or  employ  any 
slave  as  a  scribe  in  any  writing,  shall  forfeit  one  hundred 
pounds.  46.  No  person  to  keep  slaves  on  a  plantation  without 
a  white  person  with  them.  47-50.  Rewards  for  white  persons 
or  free  Indians  bringing  in  alive,  from  Florida  fugitive  negroes, 
or  their  scalps,  in  certain  cases,  &c.,  &c.  51-55.  Penalty  on  per- 
sons failing  to  carry  this  act  into  execution,  &c.,  &c.  56.  Sanc- 
tions the  unauthorized  execution  of  certain  neo;roes  during  a 


'  See  under  this  act,  in  1849,  the  State  v.  Bowen,  S^Strobhart's  R.  573.  Stroud's 
Sketch,  49. 

'  State  V.  Welch,  (1791.)  1  Bay's  R.,  172.  No'^person  can  exculpate  himself  by 
his  own  oath,  for  killing  a  slave,  not  being  the  master,  overseer,  or  some  person  having 
immediate  charge  of  such  negro. 


308  LAWS   OF    SOUTH    CAROLINA. 

previous  rebellion.  This  act  was  for  three  years,  but  was  re- 
enacted,  and  has  continued  to  be,  essentially,  the  principal  law 
on  this  subject.  7  St.  at  L.,  418,  425.  Compare  the  abstracts 
of  its  provisions  in  2  Hildr.,p.  421. 

1740.  A)i  act  for  the  better  esfahUsJiing  and  regulating 
patrols.  3  St.  at  L.,  568.  "  Forasmuch  as  many  late  horrible 
and  barbarous  massacres  have  been  actually  committed,  and 
many  more  designed,  on  the  white  inhabitants  of  this  Province 
by  negro  slaves,  who  are  generally  prone  to  such  cruel  practices," 
&c.  Sec.  8.  Defines  the  duties  and  powers  of  the  patrol  men  in 
respect  to  slaves.  Enacted  for  three  years,  but  i)robably  re- 
vived in  later  acts. 

1743.  Aji  act  for  the  better  securing  this  Province  against 
the  insurrections  and  other  ivicked  attempts  of  negroes  and  other 
slaves  ;  and  for  revising,  &c.  3  St.  at  L.,  608. 

1744.  An  act  for  the  better  governing  and  regidating  of 
white  servants,  &c.  3  Stat,  at  L.,  621. 

1745.  An  act  amending  and  continuing  the  act  of  1740, 
3  St.  at  L.,  647. 

1751.  Additional  and  explanatory  of  the  same  act.  7  St. 
at  L.,  420. 

An  act  laying  new  duties  on  slaves  imported.  3  St.  at 

L.,  739. 

1754.  An  act  to  prevent  slave-stealing,  &c.  7  St.  at  L. 
426. 

1764.  An  act  for  laying  an  additional  duty  upon  all  ne- 
groes hereafter  to  be  imported^  &c.  4  St.  at  L.,  187.  Recites 
"  Whereas  an  importation  of  negroes,  equal  in  number  to  what 
baveb  een  imported  of  late  years,  may  prove  of  the  most  danger- 
ous consequence  in  many  respects  to  this  Province,  and  the 
best  way  to  obviate  such  danger  will  be  by  imposing  such  an 
additional  duty  upon  them  as  may  totally  prevent  the  evils."  ^ 

1775-76.  An  act  to   revive   and   continue   certain    acts, 

'  In  1760,  an  act  was  passed  by  tlie  Provincial  Assembly  to  prevent  the  further  im- 
portation of  slaves,  but  was  disallowed  by  the  crown.  The  Governor  of  S.  C.  was 
rebuked  for  having  assented  to  it,  and  a  circular  letter  sent  to  all  the  other  Governors, 
prohibiting  their  assent  to  similar  act.  1  Surge's  Comm.  737.  The  trade  was  de- 
clared to  be  "  beneficial  and  necessary  to  the  mother  country."  Stevens'  Georgia,  285. 


LAWS   OF   GEORGIA,  309 

among  wliicli  arc  tlie  acts  already  described  respecting  slaves, 
4  St.  at  L.,  331,  348.' 

1775.  Nov. — to  1776  Marcli — A  Provincial  Congress  ; 
adopts  a  constitution  for  the  State,  does  not  contain  any  decla- 
ration of  private  rights.  Art.  11,  of  elections  ;  "  The  qualifica- 
tion of  electors  shall  be  the  same  as  required  by  law," 

§  230.  Legislation  of  G-eorgia. 

The  district  lying  between  the  Savannah  and  St.  John's 
rivers  had  been  included  in  the  grant  to  the  Lords  Proprietary 
of  Carolina.  The  laws  which  were  enacted  under  their  govern- 
ment for  the  portion  of  "  Carolina  south  of  Cape  Fear,"  may 
be  supposed  to  have  had  territorial  extent  in  the  territory  now 
occupied  by  the  State  of  Georgia.  The  Proprietaries  made  re- 
trocession of  their  territory  and  jurisdiction  in  1729  (ante,  p,  293,) 
By  a  charter  dated  9th  June,  1732,  a  body  corporate  called 
"  the  Trustees  for  establishing  the  Colony  of  Georgia,"  in  the 
district  south  and  west  of  the  Savannah  river,  was  created  ; 
their  trust  being  limited  to  twenty-one  years.  This  charter  re- 
pealed the  laws  of  South  Carolina,  in  and  for  Georgia," 

The  importation  of  indented  servants  was  especially  con- 
templated by  the  Trustees,  but  they  prohibited  the  introduction 


'  The  code  of  S.  C,  has  been  stringently  coercive  compared  with  those  of  the 
other  colonies  and  slave-holding  States  ;  not  only  by  the  immunity  of  power  which  it 
has  given  to  the  owners ;  but  also  in  the  authority  which  it  has  conferred,  and  indeed 
imposed  as  an  obligation,  on  each  white  inhabitant,  in  reference  to  the  slaves  and  free 
persons  of  color.  It  illustrates,  moreover,  how,  even  in  the  superiority  wliich  is  con- 
ferred upon  liim  by  law,  the  action  of  the  free  inhabitant,  though  not  himself  a  slave- 
owner, may,  in  many  respects,  be  restricted  through  the  existence  of  a  slave-class. 

-  See  the  charter  in  Stevens'  Hist,  of  Ga.,  .and  the  State  Digest.  It  declares  that 
"  all  and  every  the  persons  which  shall  happen  to  be  born  within  the  said  Province, 
and  every  one  of  their  children  and  posterity,  shall  have  and  enjoy  all  liberties,  fran- 
chises and  immunities  of  free  denizens  and  natural  born  subjects  within  any  of 
our  dominions,  as  if  abiding  and  born  within  this  our  kingdom  of  Great  Britain,  or 
any  other  dominion."  It  also  pro\-ided  that  "  all  and  every  person  or  persons  who 
shall  at  any  time  hereafter  inliahit  or  reside  witliin  our  said  Province,  shall  be  and 
hereby  are  declared  to  be  free,  and  shall  not  be  subject  to  or  be  bound  to  obey  any 
laws,  orders,  statutes  or  constitutions,  which  have  been  heretofore  made,  ordered  and 
enacted,  or  which  hereafter  shall  be  made,  &c.,  by,  for  or  as  the  laws,  orders,  statutes 
or  constitutions  of  our  said  Province  of  South  Carolina,  but  shall  be  subject  to  and 
bound  to  obey  such  orders,  etc.,  as  shall  from  time  to  time  be  made,  &c.,  i'or  the  bet- 
ter government  of  the  said  Province  of  Georgia,  in  the  manner  herein  after  declared. 
And  v/e   do  hereby,  &c.,  &c.,  that  for  and  during  the  terra  of  twenty-one  years,  to 


310  LAWS   OF   GEORGIA. 

of  slaves.*  It  was  soon  however  advocated  by  the  wealthy 
planters.  "  A  considerable  number  of  negroes  had  been  already 
introduced  from  Carolina,  as  hired  servants,  under  indentures 
for  life  or  a  hundred  years,"  and  after  a  long  controversy  on  the 
subject  (2  Hildr.  360,  371,)  the  Trustees  in  1747  "  passed  an  or- 
dinance allowing  slavery  with  certain  restrictions  on  their  num- 
bers, mode  of  employment,  and  witli  ])rovisions  for  their  religious 
instruction."     Stevens'  Georgia,  p.  312.  2  Hildr.  418. 

1754.  The  powers  of  the  Trustees  under  the  charter  hav- 
ing been  surrendered,  or  having  expired  in  1752,  a  form  of  gov- 
ernment was  organized  under  the  Board  of  Trade.  A  governor 
and  council  were  appointed  by  royal  commission.  Among  the 
ordinances  enacted  by  them  was  one  that  "  all  oflfences  com- 
mitted by  slaves  were  to  be  tried  by  a  single  justice  without  a 
jury,  who  was  to  award  execution,  and,  in  capital  cases  to  set  a 
value  on  the  slave,  to  be  paid  out  of  the  public  treasury."  A 
local  assembly  was  provided.  Voters  were  "  to  possess  fifty  acres, 
but  owners  of  town  lots  were  presently  admitted  to  the  same 
privilege." 

1755.  The   first   session  of  the   Assembly.     An  act  was 

commence  from  the  date  of  these,  &c.,  the  said  corporation,  assembled  for  that  pur- 
pose, shall  and  may  form  and  prepare  laws,  statutes  and  ordinances  fit  and  necessary 
for  and  concerning  the  government  of  the  said  colony,  and  not  repugnant  to  the  laws 
and  statutes  of  England,  &c. — such  laws,  &c.,  to  be  subject  to  the  Royal  approval  in 
privy  council;  or,  rather,  that  of  the  "  Board  of  Trade  and  Plantations,"  established 
in  1696,  "  who  .succeeded  to  the  authorit}*  and  oversight  hitherto  exercised  by  Plan- 
tation committees  of  the  Privy  Council."     2  Hildr.  197. 

'  The  British  government,  or  the  majority  of  the  Trustees,  appear  not  to  have  been 
actuated  by  any  moral  objection  to  slavery,  in  making  this  prohibition.  But  Ogle- 
thorpe, according  to  authorities  cited  by  Mr.  Bancroft,  vol.  3,  p.  426,  said,  "  Slavery 
is  against  the  Gospel  as  well  as  the  fundamental  law  of  England.  We  refused,  as 
trustees,  to  make  a  law  permitting  such  a  horrid  crime."  Mr.  Bancroft  also  gives  the 
"  governmental  view,"  together  with  the  praises  which  "  so  humane  a  plan  "  excited 
in  England.  Neale  r.  Farmer,  9  Geo.  K.,  p.  575.  "  The  introduction  of  slaves  was 
prohibited  to  the  colony  of  Georgia  for  some  years,  not  from  motives  of  humanity,  but 
for  the  reason  it  was  encouraged  elsewhere,  to  wit :  the  interest  of  the  mother  coun- 
try. It  was  a  favorite  idea  with  the  "  mother  country,"  to  make  Georgia  a  protect- 
ing barrier  for  the  Carolinas,  against  the  Spanish  settlements  south  of  her,  and  the 
principal  Indian  tribes  to  the  west  ;  to  do  this,  a  strong  settlement  of  white  men  was 
sought  to  be  built  up,  whose  arms  and  interests  would  defend  her  northern  plantations. 
The  introduction  of  slaves  was  held  to  be  unfavorable  to  this  scheme,  and  hence  its 
prohibition.  During  the  time  of  the  jirohibition,  Oglethorpe  himself  was  a  slaveholder 
in  Carolina."  Stevens,  I  list,  of  Ga.  p.  288,  says  that  in  the  oificial  publications  of  the 
Tnistees,  its  inhibition  is  based  only  on  political  and  prudential,  and  not  on  humane  or 
liberal  grounds,  and  it  seems  that  every  negro  "found  in  the  place  -was  sold  back  into 
Carolina,''  if  not  claimed  by  some  owner.  Stevens,  p.  299,  refers  for  instance,  1739 
— 1741,  in  Stephens'  Journal.  See  also  Impartial  Inquiry,  &.C.,  London,  1741,  in  voL 
1,  Coll.  of  Geo.  Hist.  Soc ,  pp.  166—173. 


LAWS   OF   GEORGIA.  311 

passed,  "  for  tlie  regulation  and  government  of  slaves."  2 
HUdr.  455. 

1765.  An  act  for  the  establishing  and  regulating  Patrols, 
and  for  preventing  any  person  from  'purchasing  provisions  or 
any  other  commodities  from,  or  selling  such  to  any  slave,  unless 
such  slave  shall  produce  a  ticket  from  his  or  her  owner,  manager 
or  employer. 

1768.  An  act  to  amend  and  continue  tlie  foregoing. 

1770.  Aji  act  for  ordering  and  governing  slaves  ivithin  this 
province,  and  for  establishing  a  jurisdiction  for  the  trial  of  of- 
fences committed  by  such  slaves  and  other  persons  therein  men- 
tioned, and  to  prevent  the  inveighling  and  carrying  aioay  slaves 
from  their  masters,  oioners  or  employers.  This  act  was  a  copy 
of  the  act  of  South  Carolina  of  1740. 

The  sections  are,  for  the  greater  part  almost  literal  copies 
of  corresponding  sections  in  the  Carolina  act.'  Sec.  14,  15,  16, 
17,  relate  to  poisoning  by  slaves,  teaching  to  poison,  and  forbid 
the  administering  of  medicines  by  slaves.  Sec  39,  forbids  teach- 
ing slaves  to  "  read  writing,"  in  addition  to  the  injunction  of 
the  Carolina  act,  sec.  45.*^ 

'  Neale  v.  p-anner,  9  Geo.  R.  582,  concludes,  that,  as  in  S.  Carolina,  ante,  p.  306,  n.  2, 
killing  a  slave  is  not  felony  by  common  law. 

'  The  statutes  above  named  are  given  in  Prince's  and  Cobb's  Digests,  except  as 
they  have  been  repealed  or  modified  in  parts,  by  later  statutes. 


CHAPTER   VII. 

OF  THE    PRIVATE    INTERNATIONAL    LAW  EXISTING  FOR    THE  SEV- 
ERAL PARTS  OF  THE  BRITISH  EMPIRE,  DURING   THE  COLONIAL 

PERIOD,  AND  RELATING  TO  FREEDOM  AND    BONDAGE OF  THE 

CONDITIONS  UNDER  WHICH  SUCH  A  LAW  MIGHT  EXIST. 

§  231.  Public  internatioiial  law  being  based  on  the  necessity 
for  a  rule  of  action  between  the  possessors  of  sovereign  power, 
and  private  international  law  on  the  recognition  of  persons  as 
having  been  at  dilSerent  times  subject  to  the  jurisdiction  of  dif- 
ferent possessors  of  that  power,  either  of  these  divisions  of  in- 
ternational law  may  come  into  existence,  or  be  applied,  wherever 
any  portion  of  that  power  is  independently  vested  or  mani- 
fested. 

While  there  is  little  difference  of  opinion,  among  writers  on 
public  law,  as  to  the  abstract  nature  of  that  authority  which,  in 
their  conception,  is  the  characteristic  of  any  one  of  those  politi- 
cal bodies  or  persons  known  as  sovereign  states  or  indejjendeut 
national  polities,  there  has  been  much  contrariety  among  them 
in  the  recognition  of  the  entirety  of  that  power  in  the  various 
visible  and  concrete  forms  in  which  political  authority  or  do- 
minion has  been  manifested. 

§  232.  It  seems  to  have  been  commonly  assumed  for  an 
axiomatic  principle,  that  sovereignty  or  supreme  national  power 
is  always  manifested  as  the  prerogative  of  a  unity,  as  indivisi- 
ble in  its  existence  ;  that,  if  regarded  as  made  visible  in  dis- 
tinctly separate  acts  of  power,  those  acts,  in  order  to  be  acts  of 
sovereign  power,  must  ultimately  depend  upon,  or  proceed  from 


INDIVISIBLE   SOVEREIGNTY.  313 

one  and  the  same  possessor  of  power  ;  that  the  sovereignty  which 
marks  or  characterizes  states  is  not  to  be  regarded  as  an  aggre- 
gation of  various  distinct  and  separate  powers,  each  of  which 
may  be  independently  exercised  by  diflerent  political  bodies  or 
persons. ' 

It  is  undoubtedly  true  that  in  the  international  recognition 
of  sovereignty  which  is  made  by  political  bodies,  or  persons 
themselves  claiming  to  constitute  a  state  or  nation,  the  only 
other  possessors  of  sovereign  power  are  persons  or  bodies  each 
holding,  within  its  own  domain,  all  the  powers  which  can  be 
attributed  to  a  state  or  nation.  For  the  persons  or  bodies  so  re- 
cognized must  be  equal  in  the  nature  of  their  power ;  that  is, 
equally  sovereign  in  all  respects  ;  and  therefore  it  is  true,  that, 
as  regards  each  other,  the  manifestation  of  any  single  act  of 
sovereign  power  proceeds  from  a  person  or  body  possessing  all 
other  attributes  of  sovereign  power.  In  view  of  the  interna- 
tional intercourse  of  nations  or  states,  properly  and  strictly  so 
called,  any  person  or  body,  manifesting  authority  over  persons 
and  things,  must  either  possess  all  the  powers  of  a  sovereign 
state,  or  be  a  subordinate  person  or  body,  in  reference  to  some 
one  such  possessor  of  sovereignty.  It  is  a  basal  fact  in  public 
law,  that  states  or  nations  respectively  recognize  only  them- 
selves as  the  possessors  of  any  portion  of  sovereign  power,  and 
can  know  themselves,  respectively,  as  the  only  persons  or  enti- 
ties who  are  absolute  and  independent  of  law  in  the  strict  and 
proper  sense  ;  although  in  certain  exceptional  cases,  states  may 
be  known  as  being  in  an  inferior  or  limited  position  in  reference 
to  other  states,  though  still  being  politically  distinct  :  and  it 
may  be  difficult,  in  matters  of  public  law,  to  distinguish  clearly 
between  a  technical  and  a  virtual  sovereignty. '^ 

'  Calhoun's  Essay  on  Gov.,  1  Works,  p.  146.  "  There  is  no  difficulty  in  under- 
standing how  powers  appertaining  to  sovereignty  may  be  divided,  and  the  exercise  of 
one  portion  delegated  to  one  set  of  agents  and  another  portion  to  another ;  or  how 
sovereignty  may  be  vested  in  one  man  or  in  a  few,  or  in  many.  But  how  sovereignty 
itself — the  supreme  power — can  be  divided,  liow  the  people  of  tlie  several  states  can 
be  partly  sovereign  and  partly  not  sovereign,  partly  supreme  and  partly  not  supreme, 
it  is  impossible  to  conceive.  Sovereignty  is  an  entire  thing ;  to  divide  it  is  to  destroy 
it" 

'  Vattel,  B.  1,  c.  1.     Pliillimore,  International  Law,  Part  2,  c.  2. 


314  DISTRIBUTED    SOVEREIGNTY. 

§  233,  Whetlier  recognized  by  external  and  independent 
political  persons  or  bodies,  or  by  private  persons  subject  to  laws 
proceeding  from  the  exercise  of  tliat  power,  sovereign  power  is 
known,  not  by  force  of  any  law  in  tlie  strict  sense,  but  by  the 
fact  of  its  exercise,  by  possession.  The  possession  of  sovereignty 
which  is  recognized  as  such  by  other  states  (externally),  must 
be,  as  before  said,  of  all  sovereign  powers,  otherwise  it  will  be 
attributed  to  some  who  exorcise  it  only  as  being  themselves 
subject  or  dependent  persons,  or  political  bodies. 

But  in  the  interior  or  internal  manifestation  of  political 
power,  i.  e.,  its  manifestation  towards  the  constituent  i)arts  or 
materials  of  a  state,  power  over  persons  and  things  may  be 
known  as  sovereign,  though  divided  or  held  by  distribution 
among  distinct  persons  or  bodies,  who,  in  the  apprehension  of 
foreign  or  exterior  persons,  together  constitute  only  the  ele- 
ments of  that  unit  which  they  recognize  as  the  possessor  of  the 
sum  of  sovereign  power  or  the  state. '  If  in  point  of  fact  those 
constituent  persons  or  bodies  severally  exercise  any  power  inde- 
pendently of  any  other  known  political  person  or  persons  exer- 
cising similar  or  different  powers,  that  power  is,  in  the  public 
law  of  the  state,  a  sovereign  power  in  its  exercise  or  manifesta- 
tion ;  though  not  held  by  a  sovereign  in  the  ordinary  accepta- 
tion^of  the  word  in  public  international  law.'^ 

The  sovereignty  of  a  state  or  nation,  in  order  that  it  may 
be  a  sovereign  state  or  nation,  is,  then,  as  to  the  rest  of  the 


'  Was  not  this  distribution  of  the  powers  belonging  to  a  national  sovereignty  the  basal 
idea  of  Gothic  or  Germanic  feudalism,  -which  once  entered  into  tlie  constitution  of  all  the 
modern  nations  of  western  Europe  ?  The  feudal  chief  had  an  independent  sovereign  au- 
thority for  local  objects,  coexistent  with  a  general  subjection  ofhimself  and  vassals  to  the 
king  or  nation.  See  Bodin's  Rep.,  as  to  a  sort  of  sovereignty  in  certain  great  families.  B.  1 
c.  2,  (Knolles'  Tr.  p.  13.)  The  towns  (muncipium)  first  acquired,  as  corporations,  an 
authority  like  that  of  feudal  lords.  The  pettj'  sovereignty-  of  chiefs  among  the  Celtic 
nations  appears  to  have  been  more  isolated.  The  Roman  political  system  tended  to 
concentrate  all  autonomic  power  in  a  single  hand.  Compare  Lieber's  Civil  Liberty 
and  Self-Government. 

^  G.  T.  Curtis's  Hist,  of  the  Origin,  &c.,  of  the  Const,  of  the  U.  S.,  vol.  I.,  p.  206. 
"Political  sovereignty  is  capable  of  partition,  according  to  the  character  of  its  sub- 
jects, so  that,"  &c.  The  partition  of  the  powers  of  sovereignty,  referred  to  in  the 
text,  is  a  diiferent  thing  from  that  distribution  or  separation  of  the  three  functions  or 
departments  of  sovereign  power,  (the  three  modes  or  forms  by  which  it  may  be  mani- 
fested, the  legislative,  judicial,  and  executive  authority,)  which  is  often  discussed  by 
publicists,  as  Bowyer's  Univ.  Public  Law,  p.  144,  and  citations. 


THE    COLONIAL    DISTRIBUTION.  315 

world  indi^•isible,  or  the  prerogative  of  a  unity.  But  the  con- 
stituents of  that  state  may,  relatively  to  each  other,  either  be 
an  individual  or  a  number  of  individuals  holding,  as  a  political 
unit,  the  wliole  power  of  a  state  ;  or  else  an  aggregate  of  indi- 
viduals or  political  unities,  each  holding,  independently  of  the 
others,  separate  powers  for  specified  objects  and  within  specified 
limits  of  space  or  of  time. 

This  may  certainly  be  the  judicial  apprehension  of  such 
powers,  or  their  legal  character  in  the  jurisprudence  of  such 
a  state.  Whether  there  must  not  be  in  every  nation  or  state 
some  one  person,  or  mass  of  persons,  who  potentially  hold,  or 
may  exercise,  if  he  or  they  will,  every  power  that  can  be  called 
sovereign  or  political  power,  is  a  different  question  ;  belonging 
to  the  domain  of  political  ethics.' 

§  234.  Even  supposing  political  power  over  persons  and 
things  to  be  separately  invested  in  distinct  portions  or  constitu- 
ents of  a  nation,  under  a  laio  proceeding  from  some  one  supreme 
national  power,  the  exercise  of  that  power  within  specified  ju- 
risdictions, and  over  persons  as  subjects  thereto,  will  give  occa- 
sion to  the  existence  of  an  international  or  g-wasi-international 
law  as  regards  the  exercise  and  effects  of  that  power. 

§  235.  During  the  connection  of  the  North  American  colo- 
nies with  the  empire  of  Great  Britain,  the  sum  of  the  powers 
of  national  sovereignty  over  their  territory  was  distributed,  at 
least  according  to  the  views  of  the  colonists,  in  some  undeter- 
mined proportion,  between  the  parliament  or  imperial  govern- 
ment, and  the  local  governments  of  the  several  colonies.^  The 
rules  wliich  regulated  the  public  or  political  intercourse  between 
these  various  constituent  parts  of  the  empire  were  included  in 
the  public  municipal  law  of  the  empire,  a  law  of  political  or- 
ganization, and  formed  a  law  in  the  strict  sense  of  the  term,  be- 
cause resting,  in  theory  at  least,  on  the  undivided  national  will, 
though  they  resembled  public  international  law  in  many  re- 
spects.    But  since  these  several  parts  did,  in  fact,  separately 


'  Domat,  Public  Law.     B.  I.,  tit.  1.     Pufendorff,  B.   7,  c.   4,  §  1.     Palcy,  Moral 
Phil.,  B.  VI.,  c.  6.     Lieber,  Civil  Lib.,  &c.,  vol.  1,  168. 
'  Ante,  ch.  IIL 


316  ORIGIN    OF    INTERNATIONAL   RELATIONS. 

exercise  certain  political  powers  within  specified  jurisdictions, 
persons  might  within  each  he  recognized  as  native  or  alien,  tem- 
porary or  domiciled  suTyects,  in  reference  to  any  one  sucli  juris- 
diction and  its  local  laws,  and  persons  whether  domiciled  or 
alien  might, he  recognized  as  sustaining  relations  caused  by  their 
previous  subjection  to  another  of  those  jurisdictions. 

§  236.  The  term,  jurisdiction  is  used  to  signify  not  only  the 
right,  power,  or  authority  of  promulgating  and  enforcing  law  in 
respect  to  persons  and  things  within  a  certain  district  or  terri- 
tory, but  also  the  territoiy  itself  within  which  that  right,  power 
or  authority  is  exercised.  And  the  term  is  also  frequently  used 
in  a  sense  including  both  these  meanings  ;  as  where  persons 
are  denominated  aliens  in  respect  to  a  certain  Jurisdiction  ; 
meaning  not  only  to  the  territory,  but  also  to  the  laws  prevail- 
ing therein,  and  tlie  political  power  from  which  they  proceed. 

It  has  been  shown  in  the  first  chapter,  that  when  private 
international  law  becomes  distinguished  from  the  municipal 
(internal)  law  in  any  jurisdiction,  it  is  by  its  application  to  per- 
sons ;  and  that  it  is  based  upon  the  recognition  of  certain  dis- 
tricts of  territory,  as  being  under  separate  political  power,  con- 
stituting separate  jurisdictions,  and  of  persons  as  being  alien  or 
native  in  respect  to  one  or  the  other  of  those  jurisdictions  ;  or, 
rather,  upon  the  recognition  of  persons  in  one  such  jurisdiction 
as  having  rights  or  sustaining  obligations  in  relations  arising 
from  a  previous  subjection  to  the  law  of  another  ;  and  that  it 
has  always,  by  its  application,  the  character  of  a  personal  law.* 
§  237.  A  simple  subjection  at  different  times  to  different  jurisdic- 
tions being  thus  the  foundation  of  private  international  law,  the 
legal  relations  of  even  the  domiciled  inhabitants  of  one  jurisdic- 
tion may  sometimes  be  therein  taken  to  be  affected  by  a  tem- 
porary subjection,  without  domicil,'^  to  the  laws  of  another  ;  as 

'  Anit,  §  53. 

'  According  to  what  has  been  said  before  (§§  Si,  121,)  the  circumstance  of  natu- 
ral or  native  birth,  or  the  congenital  circumstance  of  a  legal  naturalization,  is  that 
upon  which  the  distinction  of  alienage  is  primarily  founded.  But,  in  the  practice  of 
nations,  distinguishing  between  persons  in  respect  to  the  laws  which  control  their  con- 
dition, it  is  the  foct  or  facts  constituting  the  technical  relation  of  domicil  rather  than 
the  natural  fact  or  circumstance  of  birth,  or  an  equivalent  naturalization,  which,  in 
most  instances,  distinguishes  the  alien  from  other  persons  in  the  national  jurisdiction, 


REFERENCE   TO   DOMICIL. 


317 


relations  arising  out  of  contract.  Thus  also  a  loss  of  personal 
liberty,  for  crime  committed  against  the  state  to  wliich  the  per- 
son has  been  temporarily  subject,  may,  in  certain  cases,  be  re- 
cognized in  the  domicil  of  such  person.  This  instance  of  inter- 
national law,  though  affecting  the  individual  right  herein  par- 
ticularly considered,  i.  e.,  personal  liberty,  is  however  distinct 
from  the  international  recognition  of  status  or  condition,  wliich, 
according  to  previous  definition,  consists  in  the  possession  or 
non-possession  of  individual  rights,  with  capacity  for  relative 
rights  in  relations  towards  other  private  persons.  The  persons 
whose  condition  under  private  international  law  is  here  io  be 
inquired  into,  were,  in  the  first  instance,  to  be  recognized 
as  aliens  to  some  one  jurisdiction,  by  reason  of  previous 
domicil  in  another  ;  and  the  question  to  be  considered  is  of 
the  subsequent  continuation  or  alteration  of  their  rights  and 
obligations,  created  under  the  law  of  such  domicil,  in  those  re- 
lations which  constitute  status  or  condition. 

§  238,  Although  each  colony  of  the  British  Empire  was  a 
part  of  the  integral  imperial  or  national  domain,  and  under  one 
imperial  or  national  jurisdiction,  yet,  in  being  also  under  a  dis- 
tinct local  government,  it  constituted,  in  respect  to  it,  a  par- 
ticular local  jurisdiction.  Persons  in  the  several  colonies  might 
be  distinguished  as  being  either  alien,  temporary,  native  or  na- 
turalized, or  domiciled  subjects,  in  reference  to  one  only,  or  to 
both  of  these  jurisdictions,  and  to  the  two  several  sources  of  law 
and  jurisdiction,  thus  having  concurrent  existence  in  each  col- 
ony. And  in  this  view,  England,  Scotland  and  Ireland  might 
each,  before  the  legislative  union,  ^  be  considered  as  being  in  the 
same  manner  under  a  local  and  a  national  jurisdiction,  and  per- 
sons in  any  one  of  those  portions  of  the  original  dominion  of  the 
British  Empire  might  be  distinguished  as  native  or  alien,  tem- 
porary or  domiciled  subjects,  in  respect  to  one  or  both  of  the 
sources  of  law  therein. 

to  which  they  are  all  equally  subject.  In  other  words,  the  distinction  between  domi- 
ciled subjects  and  subjects  having  a  foreign  domicil  is  more  comprehensive,  in  private 
international  law,  than  that  between  native  or  naturalized  and  alien  born  subjects, 
which  last  is  more  important  in  that  part  of  international  law  wliich  is  herein  called ;7u6 
lie,  concerning  the  rights  and  obligations  of  states  to  each  other  as  distinct  nationalities. 
'  Acts  of  Union,  for  England  and  Scotland,  5  &  6  Anne,  c.  8,  (17U6,)  for  England 
and  Ireland,  39  &,  40,  Geo.  '6,  c.  G7,  (1800.) 


318  LAW   APPLYING   TO   ALIENS. 

Those  persons  who  "w^ere  alien,  either  by  birth  or  by  domicil, 
to  the  national  jurisdiction  of  the  empire,  were  necessarily  such 
also  in  reference  to  any  one  particular  jurisdiction.  But  since 
the  domicil  of  any  person,  subject,  by  birth  or  by  domicil,  to  the 
national  jurisdiction,  would  also  be  a  domicil  with  reference  to 
one  only  of  those  particular  jurisdictions  into  which  the  empire 
was  divided,  any  English  subject,  by  having  a  domicil  in  one  of 
those  jurisdictions,  would,  when  within  the  territory  of  another, 
be  alien  in  respect  to  it  and  its  local  law  ;  though  remaining 
under  the  same  national  sovereignty  and  under  the  jurisdiction 
of  the  same  national  law. 

§  239.  Whatever  rules  may  be  applied  as  private  interna- 
tional law  in  any  jurisdiction  to  determine  the  rights  or  relations 
of  alien  persons,  must  depend  upon  the  will  of  the  political 
source  of  the  municipal  (national)  law  therein  ;  since  no  rules 
of  action  can  have  the  force  of  law  within  any  territory  except 
by  the  will  of  the  supreme  power.  ^ 

The  status  or  condition  of  aliens  in  any  one  of  the  several 
particular  jurisdictions  of  the  empire,  whether  aliens  to  the 
whole  empire  or  to  that  particular  jurisdiction  only,  would  be 
determined  by  one  or  the  other  of  those  sources  of  the  muni- 
cipal law  which  prevailed  therein  ;  viz.,  either  the  national  or 
the  local  authority. 

To  ascertain  then  the  law  applying  in  any  one  locality  of  the 
empire  to  the  condition  of  an  alien  of  either  of  the  above  de- 
scribed classes,  it  is  necessary, 

First,  to  refer  to  the  public  law,  or  law  of  "political  constitu- 
tion, to  ascertain  the  location  of  the  supreme  legislative  or  ju- 
ridical power  over  such  persons  and  over  their  various  relations, 
(i.  e.,  the  investiture  of  that  power,  either  in  the  local  or  in  the 
imperial  legislature,)  and 

Secondly,  to  ascertain  the  actual  rule  of  action  proceeding 
from  such  power. 

§  240.  It  has  already  been  necessary,  in  giving  an  historical 
exposition  of  the  origin  of  the  municipal   (national)   law  in 

'  Ante,  §§  12,  36. 


SOURCES   OF    THE   LAW,  319 

America,  both  public  and  private,  to  indicate  the  several  politi- 
cal sources  of  power  from  which  the  laws  affecting  the  condition 
of  alien  persons  of  each  of  these  classes  in  the  several  divisions 
of  the  em])ire  might  proceed  ;  and  also  to  state  some  of  the 
rules  or  principles  actually  applied  to  determine  the  condition 
of  such  persons,  whether  aliens  to  the  empire  or  to  any  one  of 
the  several  particular  jurisdictions. '  For  although  those  rules 
were  there  described  as  taking  effect  in  the  American  colonies 
with  the  force  and  extent  of  municipal  (internal)  law,  they  yet 
had,  from  the  first,  an  international  effect,  from  the  national 
character  and  political  associations  of  the  persons  to  whom  they 
were  applied  and  for  whom  they  received  a  personal  extent, — 
the  character  of  personal  laws. 

It  has  been  shown  that,  so  far  as  the  condition  of  persons 
alien  to  the  empire  consisted  in  such  rights  of  persons  as  were 
incident  to  relations  of  external  commerce  and  intercourse  with 
foreign  nations,  it  was  determined  by  the  authority  held  by  the 
imperial,  rather  than  by  that  held  by  the  several  provincial  gov- 
ernments ;''  while  such  was  the  distribution  of  power  in  the 
colonies,  between  the  local  and  the  imperial  governments,  that 
the  condition  or  relations  of  the  domiciled  inhabitant  of  any  par- 
ticular jurisdiction  were  determined,  partly  by  a  law  emanating 
from  a  local  authority,  and  partly  by  a  national  law  ;  the  lat- 
ter having,  in  reference  to  such  inhabitant,  the  same  force  and 
effect  in  every  other  jurisdiction  of  the  empire  ;  determining, 
within  each,  the  condition  of  such  person,  so  domiciled  in 
another  jurisdiction  of  the  same  empire,  in  all  relations  falling 
within  the  scope  of  that  national  law  while  such  person  was  in 
the  place  of  his  domicil." 

§  241.  It  has  also  been  shown  that  with  the  first  establish- 
ment of  law  in  the  colonies,  (whether  proceeding  from  the  im- 
perial or  the  local  source  of  law,)  and  with  the  first  necessary 
recognition  of  persons  as  aliens,  (either  to  the  territorial  domin- 
ion of  the  empire,  or  to  the  territory  of  England,  and  the  law 

'   Ante,  Chapter  V.  VI.  »  Ante,  §  203.  '  Ante,  §§  13G,  137,  193. 


320  THE   DISTINCTION   OF   RACE. 

having  territorial  extent  therein,)  a  personal  distinction  existed 
in  the  application  of  the  national  and  of  the  particular  laws  ; 
according  to  which  hoth  the  domiciled  inhahitants  of  tlie  seve- 
ral colonies  and  persons  known  as  aliens,  to  the  colonies  and  to 
the  rest  of  the  empire,  became  distinguished  into  two  classes, 
standing  in  different  relations  towards  the  imperial  and  the 
colonial  authority.  This  distinction  was  founded  upon  a  differ- 
ence of  race,  complexion,  or  physical  structure,  and,  in  some  de- 
gree, upon  differences  of  religious  belief ;  and  this  distinction,  in 
having  been  first  judicially  applied  among  persons  known  as 
aliens  to  the  imperial  dominion,  or  to  the  laws  of  England,  was 
applied  as  private  international  law,  both  under  the  imperial 
and  the  local  authority,  and  having  been  continued  in  the  mu- 
nicipal (internal)  law  of  the  colonies,  apjilying  to  the  domiciled 
inliabitants  of  those  colonies,  it  continued  to  distinguish  them 
when  appearing  as  aliens  to  the  jurisdiction  of  any  one  j9«r- 
ticular  colony  or  division  of  the  empire, 

§  242.  For  the  ahen  (to  the  empire)  of  white  or  European 
race,  in  being  a  native  or  domiciled  subject  of  some  Christian 
nationality,or  of  such  a  state  as  was  a  recognized  participant  in 
the  jurisdiction  of  jDublic  international  law,  was  regarded  as  be- 
ing under  the  protection  of  that  law  which  is  an  acknowledged 
rule  of  action  among  civilized  nations,  though  not  having  the 
force  of  law,  in  the  strict  sense  of  the  word,  as  a  rule  of  which 
nations  are  the  subjects  :  and  whatever  rights  attached  to  such 
alien  under  such  law  were,  so  long  as  he  continued  in  alienage, 
regarded  as  being  under  the  protection  of  the  imperial  or  na- 
tional power,  as  well  as  under  that  of  any  particidar  jurisdiction 
within  whose  territorial  limits  he  might  be  found  ; — since  aU 
relations  constituting  the  national  intercourse  with  foreign  states 
were,  of  necessity,  controlled  by  the  imperial  rather  than  by  the 
provincial  authority.  And  when  such  alien  of  European  race 
had  become  a  domiciled  inhabitant  of  any  one  pohtical  division 
of  the  empire,  his  condition,  and  that  of  his  posterity,  was  un- 
der the  charters,  and  the  various  laws  of  naturalization,'  deter- 

*  Ante,  202. 


THE   DISTINCTION   OF   RACE.  321 

mined  like  that  of  the  inhabitant  of  English  birth  or  descent, 
by  a  law  resting  in  part  on  the  national  authority  ;  which,  to 
that  extent,  continued  to  be  a  law  of  his  condition  when  ap- 
pearing in  any  other  jurisdiction  of  the  Empire  than  that  of 
which  he  became  a  domiciled  inhabitant. 

§  243.  On  the  other  hand,  aliens  to  the  empire  of  African 
or  Indian  race,  if  not  every  alien  of  a  barbarian  or  heathen 
race,  were  without  the  protection  given  by  public  international 
law  to  foreigners  of  European  birth,  and  did  not,  as  aliens,  sus- 
tain relations  known  to  that  law  and  incident  to  foreign  com- 
merce and  political  intercourse  falling  within  the  scope  of  the 
national  imperial  authority  ;'  unless  indeed  the  rights  of  a 
foreign  owner  in  respect  to  a  slave  of  one  of  those  races  might 
receive  protection  from  the  national  authority,  as  forming  an 
incident  of  the  relations  of  such  alien  owners.  So  far  as  the 
slave  trade  was  foreign  commerce,  or  consisted  only  in  the  im- 
portation of  chattel  slaves  from  abroad,  it  would  seem  to  have 
fallen  within  the  legislative  province  of  the  imperial  Govern- 
ment, rather  than  in  that  of  the  several  colonial  authorities. 
So  far  as  such  African  or  Indian  alien  was  recognized  as  a  legal 
person,  his  condition  was  determined  entirely  by  the  local  au- 
thority of  that  particular  jurisdiction  of  the  empire  in  which  he 
might  be  found.  And,  whether  chattel  slavery  is  to  be  taken  to 
have  been  supported  by  a  law  proceeding  from  the  national  au- 
thority, at  the  time  of  its  introduction  into  America,  or  not,  yet, 

'  By  Mr.  Justice  Daniel,  in  Dred  Scott  v.  Sandford,  19  Howard,  p.  475  ;  "Now  the 
following  are  truths  which  a  knowledge  of  the  history  of  the  world,  and  particularly 
of  that  of  our  own  country,  compels  us  to  know — that  the  African  negro  race  never 
have  been  acknowledged  as  belonging  to  the  family  of  nations ;  that  as  amongst  them 
there  never  has  been  known  or  recognized  by  the  inhabitants  of  other  countries  any 
thing  partaking  of  the  character  of  nationality,  or  civil  or  political  polity ;  that  this 
race  has  been  by  all  the  nations  of  Europe  regarded  as  subjects  of  capture  or  pur- 
chase ;  as  subjects  of  commerce  or  trafBc ;  and  that  the  introduction  of  that  race  into 
every  section  of  this  country  was  not  as  members  of  civil  or  political  society,  but  as 
slaves,  as  property/  in  the  strictest  sense  of  the  term." 

There  is  no  connection  between  the  political  nonentity  of  African  communities  and 
the  status  of  Africans  when  they  appear  in  foreign  countries.  The  fact  that  negroes 
did  not  enter  this  country  as  the  subjects  or  members  of  some  recognized  foreign 
state  or  nation  is,  in  the  section  above,  noticed  only  as  indicating  the  source  of  law,  im- 
perial and  national,  or  colonial  and  local,  upon  which  their  condition  depended.  ^  The 
fact  did  not  determine  their  condition  as  bond  or  free.  An  African  savage  entering  a 
European  jurisdiction  as  a  voluntary  immigrant  would,  jure  gentium,  have  been  as 
free  of  condition  as  any  immigrant  of  European  race. 

21 


322  LOCATION    OF   POWER. 

as  has  been  shown  in  the  preceding  chapters,  the  power  of  limit- 
ting,  in  the  first  instance,  and,  finally,  of  prohibiting  the  importa- 
tion of  chattel  slaves  from  abroad  was  claimed  by  the  several 
colonial  legislatures,  each  for  its  own  jurisdiction.  The  power 
to  regulate  the  introduction  by  land,  or  from  the  other  colonies, 
of  Africans  and  Indians  held  in  servitude  appears  to  have  always 
been  left  to  their  discretion,  without  controversy. 

§  244.  The  condition  of  the  African  or  Indian,  when  once 
settled  within  a  colonial  jurisdiction,  either  by  becoming  a  free 
domiciled  inhabitant,  or  the  property  of  a  resident,  appears  to 
have  always  been  exclusively  within  the  prerogative  of  the  local 
sovereignty.  It  would  seem,  from  the  personal  distinction  which 
constantly  obtained  in  the  application  of  municipal  (inter- 
nal) laws  in  the  American  colonies,  that  there  was  no  law  ,afFect- 
ing  the  condition  of  the  African  or  Indian  domiciled  subject, 
having  like  national  foundation  and  extent  with  the  common 
law,  applied  to  the  white  colonist.  For  while  the  legal  condition 
of  the  African  or  Indian  inhabitant,  in  any  particular  jurisdiction, 
might  vary  therein,  from  chattel  slavery — the  negation  of  all  le- 
gal rights — to  the  possession  of  all  individual  and  relative  rights 
of  a  private  j)erson  known  to  the  common  law  of  England,  that 
condition  rested,  apparently,  only  on  the  local  law  of  that  juris- 
diction, and  was  not  supported  therein  by  a  law  of  the  national 
power,  having  national  extent  and  recognition  as  a  law  of  the 
national  or  imperial  jurisdiction.  And  it  has  been  shown  that 
even  the  terms  of  those  royal  charters  which  guaranteed  to  the 
colonists,  generally,  and  their  descendants,  the  rights  of  subjects 
of  English  birth,  must  be  interpreted  with  reference  to  this 
limitation  existing  in  the  laio  of  nations,  or  universal  jurispru- 
dence, then  received  as  an  authoritative  exposition  of  natural 
reason  and  applied  in  municipal  and  international  law, '  and  that 
therefore  the  condition  of  Indians  and  negroes,  born  within  the 
colonial  jurisdictions,  was  not  determined  by  that  personal  law 
of  privilege,  derived  from  the  common  law  of  England,  which 
had,  for  whites  or  European  subjects,  a  national  extent.     What- 

Ante,  §  202. 


CONDITION    BY    NATIONAL    LAW.  323 

ever  support  the  condition  of  the  African  or  Indian  might  have 
in  the  sovereignty  held  by  the  imperial  government,  while  con- 
sidered an  alien  to  the  British  empire, — when  he  became  a 
domiciled  subject,  his  relations  and  rights  were  determined  only 
by  the  law  of  the  particular  district  in  which  he  might  be 
found  ; — by  the  municipal  (internal)  law  thereof,  if  therein 
domiciled,  and  by  the  international  law  as  received  and  applied 
in  that  jurisdiction  by  the  local  sovereignty,  if  domiciled  in  some 
other  part  of  the  empire  :  each  particular  jurisdiction  being,  in 
respect  to  aliens  of  these  races,  independent  in  its  interpretation 
of  private  international  law  ;  except  so  far  as  that  law  concerned 
relations  of  foreign  commerce  and  intercourse.  And  there  was 
no  law,  resting  on  the  national  authority  and  having  national 
extent,  by  which,  as  a  personal  law,  the  condition  of  such  per- 
sons domiciled  in  some  one  particular  jurisdiction  could  be  de- 
termined throughout  the  empire,  independently  of  the  local 
authority  of  each  several  jurisdiction  ;  not  even  if,  while  being 
such  alien  in  respect  to  such  several  jurisdiction,  he  were  claimed 
by  other  persons  as  an  object  of  property.  Because,  as  before 
shown,  it  was  only  in  the  relations  of  foreign  commerce  that 
that  condition  received  any  suj)port  from  the  imperial  power. 
If  claimed  as  property  of  a  master,  domiciled  in  some  other  di- 
vision of  the  empire,  who  by  the  law  having  national  extent  en- 
joyed the  individual  or  absolute  right  of  private  property,  stiU 
his  property  in  the  African  or  Indian  slave  would  not  rest  upon 
such  national  law,  unless  the  common  law  of  England  could  be 
taken,  at  the  time,  to  admit  that  kind  of  property  or  to  include 
the  doctrines  of  the  historical  laiu  of  nations  (jus  gentium)  as 
known  at  the  first  introduction  of  slaves  into  America. ' 

§  245.  It  has  been  shown  in  the  fourth  chapter,  that — if  at 
any  period  the  doctrines  of  the  historical  laiv  of  nations,  in  re- 
spect to  chattel  slavery,  had  had  force  in  England  itself,  as  part 
of  the  common  law,  either  those  principles  were  apphed  to 
heathen  negroes  or  Indians  only  while  alien,  and  before  becom- 
ing Christianized,  and,  on  becoming  domiciled  inhabitants  and 

*  Compare  ante,  §  138. 


324  LIMITATION    OF    COMMON    LAW. 

baptized,  their  legal  condition  becalne  determined  by  some  law 
originating  in  the  local  juridical  power,  some  jus  proprium  ;  or 
else,  that  the  laio  of  nations  must  itself  be  taken  to  have 
changed  in  the  judicial  recognition  of  English  courts,  during  the 
colonial  period  ;  and,  that  in  England,  towards  the  close  of  that 
period,  the  law  which  had  attributed  the  possession  of  individual 
rights  and  a  capacity  for  relative  rights  to  all  persons  of  the 
white  or  European  race,  irrespectively  of  their  national  domicil, 
was  taken  to  extend  to  all  natural  persons  of  whatever  race. 
The  question  of  the  recognition  or  non-recognition,  in  England, 
of  such  a  doctrine,  in  the  application  of  private  international  law, 
is  to  be  considered  in  the  next  two  chapters.  It  will  here  be  as- 
sumed that  the  historical  facts  stated  in  the  fourth  chapter,  the 
course  of  colonial  legislation  which  has  been  shown  in  the  sixth, 
together  with  the  judicial  authorities  wliich  will  be  set  forth  in 
the  next  chapter,  indicate  that  such  a  change  in  the  law  of  na- 
tions did  take  place  at  some  period  prior  to  the  American  Revo- 
lution ;^  and  that,  whenever  it  may  have  occurred,  it  must  be 
taken  to  have  modified  the  common  law  of  England  in  its  na- 
tional extent  throughout  the  empire.  So  that,  regarded  as  the 
personal  law  supporting  the  liberties  or  privileges  of  the  master, 
it  did  not,  or  at  least  at  a  point  of  time  shortly  before  the 
Revolution,  did  not  support  in  any  one  part  of  the  empire  the 
slavery  of  any  Indian  or  African  domiciled  in  another  part  :  not 
even  if  it  is  to  be  admitted  that,  while  the  African  slave  trade 
continued  to  be  sanctioned  by  the  British  government,  the  title 
to  right  of  ownership  in  heathen  Africans,  when  imported  by  the 
traders,  rested  on  common  law,  or  the  "  law  merchant." 

§  246.  So,  on  the  other  hand,  although  the  condition  of  a 
person  of  the  African  or  Indian  race,  domiciled  in  any  one  ju- 
risdiction of  the  Emjjire,  might,  under  the  local  law  of  that 
jurisdiction,  consist  in  rights  of  the  same  legal  nature  as  those 
which  characterized  the  condition  of  an  inhabitant  of  the  same 

'  This  assumption  is  made  here,  it  is  to  be  observed,  in  describing  the  character 
or  authority  (as  being  either  national  or  local)  of  the  law  upon  which  the  question  of 
the  continuance  of  the  relation  of  master  and  slave  beyond  the  place  of  their  domicil 
would  depend.  The  further  proof  can  only  be  given  by  an  analysis  of  the  judicial  de- 
cisions here  referred  to. 


LAW  OF  INDENTURED  BONDSMEN.  325 

jurisdiction  who  was  of  Englisli  or  European  race,  those  rights 
were  the  result  of  a  law  confined  in  its  territorial  extent  to  the 
jurisdiction,  and  not  of  a  law  having  national  extent,  and  there- 
fore their  support  in  any  other  part  of  the  empire  would  depend 
upon  the  private  international  law,  as  received  and  applied  there- 
in by  the  local  source  of  power. 

§  247.  If  the  bondage  of  indentured  white  servants  or  the 
redemptioners,  was  a  relation  which  could  not  exist  in  England 
itself,  and  was  created  by  a  law  having  special  reference  to  the 
colonies,  as  parts  of  the  empire  in  which  it  was  to  be  maintained, 
it  was  still  a  condition  which  originated  under  the  imperial  or 
national  source  of  law.  At  least  the  law  under  which  such  per- 
sons were  sent  out  in  bondage,  from  England  to  America,  must 
be  taken  to  have  had  national  jurisdiction  to  that  extent.  And 
it  appears  to  have  been  recognized  as  such  by  the  reception  of 
those  persons  into  all  the  various  colonies,  under  the  obligations 
originally  created  in  the  mother  country.  But,  from  the  power 
assumed  by  the  several  colonial  legislatures  over  the  condition 
of  this  class  of  persons,  when  once  incorporated  into  the  resident 
population  of  any  colony,  the  particular  rights  and  obligations 
attending  their  servile  condition  and  the  period  of  their  continu- 
ance in  servitude,  seem  to  have  rested  in  each  colony  upon  the 
local  law  alone.  If  the  bondage  of  this  class  of  persons,  when 
domiciled  in  the  colonies,  did  thus  lose  the  support  of  statutes 
resting  on  tlie  imperial  authority,  and  if  also  the  right  of  the 
master  to  the  services  of  such  bondsman  was  not  supported  by 
the  common  law  having  national  extent,  the  international  recog- 
nition of  this  condition  in  such  persons,  when  found  in  any  other 
jurisdiction  of  the  empire  than  that  in  which  they  were  domi- 
ciled, would  depend  only  upon  the  will  of  the  local  authority  in 
that  particular  jurisdiction,  and  the  view  held  by  it  of  the  true 
doctrine  of  private  international  law  (that  is,  what  rules  otiglit 
to  be  applied  as  private  international  law,)  relative  to  such  a 
condition  of  private  persons.  The  only  law  to  determine  the 
condition  of  this  class  of  aliens  in  the  several  parts  of  the  em- 
pire, at  least  when  they  were  recognized  as  having  a  domicil  in 
some  other  one  of  the  colonies,  would  therefore  be  such  as  in  its 


326  LAW    OF    MINOR    APPRENTICES. 

authority  would  be  identified  with  the  local  municipal  law  there- 
of, and  be  derived  from  the  local  power  ;  though  it  would  be 
international  law  from  the  alien  character  of  the  persons  to 
whom  it  should  be  applied  ;  a  law  having  the  same  character  as 
that  by  which  the  condition  of  the  African  or  Indian,  domiciled 
in  some  one  colony,  would  be  determined  in  any  other  particular 
jurisdiction  of  the  empire  in  which  he  might  be  found,  i.  e.  mu- 
nicipal and  local  law  in  its  autliority  ;  international  by  its  ap- 
plication to  those  persons  thus  regarded  as  alien  in  respect  to 
that  jurisdiction. 

§  248.  The  law  therefore  which  applied  in  any  one  of  the 
several  jurisdictions  of  the  British  empire,  as  private  interna- 
tional law  to  these  two  descriptions  of  persons,  viz.  :  indentured 
white  servants  and  Africans  or  Indians  having  a  domicil  in  some 
other  one  of  the  colonies  must  be  ascertained  in  the  same  man- 
ner as  if  those  jurisdictions  severally  constituted  independent 
national  jurisdictions,  in  all  respects. 

§  249.  There  existed  also,  in  the  several  jurisdictions  of  the 
British  Empire,  another  class  of  persons  who  by  law  were  obhged 
to  render  service  to  private  masters,  viz.  :  minor  apprentices  ; 
and  in  case  of  the  removal  of  such  apprentices  from  the  place  of 
their  domicil,  or  in  case  of  their  absconding  and  being  found  in 
some  jurisdiction  other  than  that  in  which  their  obligations  first 
existed,  the  question  of  the  continuation  of  the  rights  and  obli- 
gations of  the  parties  to  the  relation  would  resemble  those  which 
in  the  case  of  slaves  and  indentured  servants  in  like  circum- 
stances, would  be  decided  by  private  international  law,  as  above 
distinguished  from  the  common  law  having  national  extent. 

But,  though  the  condition  of  a  minor  apprentice  was  cre- 
ated by  indenture,  and  was  similar  in  its  temporal  limitation 
and  some  other  incidents  to  that  of  the  so-called  redemptioners, 
it  had  a  totally  different  foundation.  The  relation  of  master 
and  apprentice  was  a  continuation  of,  or  substitute  for,  that 
of  parent  and  child,  or  that  of  guardian  and  ward.  The  power 
of  the  master  was  a  delegation  of  the  patria  potestas,  and  with 
the  right  to  service  was  associated  a  personal  duty  in  respect  to 
the  apprentice,  which  was  not  recognized  in  the  case  of  the  in- 


LAW    OF    MINOR   APPRElfTICES.  327 

dentured  or  purchased  bond-servant.  Tliough  generally  modified 
by  statute  law,  the  relation  was  one  defined  and  recognized  by 
the  common  law  of  England  :  and  while  it  had  a  local  character, 
in  being  intended  to  exist  only  in  certain  districts,  such  as  coun- 
ties or  towns,  and  under  the  supervision  of  the  civil  authorities 
therein,  so  that  it  could  not  be  said  to  continue  between  the 
parties  if  permanently  removing  from  the  jurisdiction  in  which 
it  had  been  created,  yet,  as  between  parties  domiciled  elsewhere, 
the  right  of  a  master  to  control  the  person  of  the  fugitive  ap- 
prentice may  have  been  recognized  in  the  several  colonies  as  a 
right  at  common  law,  that  is,  the  common  law  of  England  hav- 
ing personal  extent. 


CHAPTER  Yin. 

OF  THE  PEIVATE  INTERNATIONAL  LAW  OF  THE  COLONIAL  PERIOD 
AFFECTING  CONDITIONS  OF  FREEDOM  AND  BONDAGE. — THE  SUB- 
JECT  CONTINUED. — OF    ITS   ACTUAL   EFFECT   OR   OPERATION. 

§  250.  In  the  preceding  chapter  the  conditions,  created  by 
the  public  municipal  law,  have  been  indicated  under  which  a 
private  international  law,  affecting  freedom  and  bondage,  might 
exist  in  the  colonies.  It  is  now  necessary  to  ascertain  its 
actual  operation  or  effect. 

It  has  been  shown,  in  the  second  chapter,  that  the  private 
international  law,  like  every  other  rule  which  has  the  force  of 
law  for  private  persons,  is  known  or  promulgated  either  from 
a  judicial  or  a  legislative  source  ;  being,  in  either  case,  equally 
positive  law,  in  the  sense  of  the  ascertained  will  of  the  state, 
though,  in  ordinary  parlance,  the  term  "  positive  law"  is  apphed 
only  to  law  known  by  legislative  enactment ;  positive  legislation 
being  more  authoritative  than  law  judicially  ascertained,  only  in 
this,  that  it  is  a  more  direct  method  of  ascertaining  the  will  of 
the  supreme  source  of  law  on  any  particular  topic  ;  but,  in  the 
natural  order  of  existence,  the  law  judicially  ascertained  j)recedes 
positive  legislation,  and  always  exists  as  of  necessity.  ^ 

The  condition,  in  respect  to  freedom  or  bondage  of  persons 
of  the  classes  before  described,  having  a  domicil  in  one  of  the 
colonies,  when  appearing  as  aliens  within  another  jurisdiction  of 
the  empire,  might  have  been  determined  either  by  legislation, 

'  Ante,  §§  17,  29. 


INTERNATIONAL   LEGISLATION.  329 

having  direct  interricational  reference  to  sucli  persons,  or  by  the 
judicial  application  of  general  principles  of  international  juris- 
prudence. This  judicial  source  of  law,  for  the  reason  just  stated, 
viz.,  its  naturally  prior  existence,  should,  in  the  historical  order, 
he  first  examined. 

§  251.  It  has,  however,  been  convenient  to  present,  in  the 
preceding  chapter,  the  legislation  of  the  several  colonies  having 
this  extent  among  the  statutes  which  operated  as  municipal 
(internal)  law.  It  consisted  principally  in  statutes  limiting  the 
importation  of  negro  and  Indian  slaves  and  servants.  With  the 
exception  of  the  eighth  article  of  the  agreement  between  the 
New  England  colonies,  in  1643,  and  the  seventh  in  that  of 
1672,1  so  far  as  they  took  effect  as  private  laws.  No  laws 
appear  to  have  been  enacted  respecting  slaves  or  servants  es- 
caped from  other  jurisdictions,  or  brought  in  by  their  owners 
without  the  intention  either  to  sell  them  or  to  acquire  a  domicil. 

It  would  have  been  consistent  with  the  view  herein  before 
taken  of  the  foundation  and  extent  of  two  systems  of  personal 
laws,  obtaining  in  the  colonial  districts  of  the  empire,  if  acts 
had  been  passed  by  colonial  governments  prohibiting  or  regUr 
lating  the  entry  of  free  persons  of  African  or  Indian  race  domi- 
ciled in  other  colonies.  There  does  not,  however,  appear  to 
have  been  any  such  exercise  of  the  legislative  power.  In  the 
earlier  history  of  the  colonies,  there  were  some  instances  of  local 
legislation  prohibiting  the  ingress,  or  compelling  the  departure 
of  persons  equally  entitled,  with  the  other  inhabitants  constitut- 
ing the  legislating  majority,  to  the  enjoyment  of  individual  and 
relative  rights  under  the  law  of  England.  Such  legislation,  in 
most  of  these  cases,  was  caused  by  the  ideas,  then  generally 
prevalent,  respecting  the  duty  of  a  poHtical  state  in  relation  to 
the  religious  instruction  of  the  subject,  which,  soon  after  the 
extension  of  the  English  dominion  over  the  whole  Atlantic  sea- 
board, and  the  manifestation  of  a  very  great  variety  in  religious 
behef  among  the  inhabitants  of  all  the  colonies,  became  essen- 
tially modified.     And,  whether  the  colonial  governments  con- 

'  Ante,  pp.  2G8,  2G9. 


330  THE    JUDICIAL    PRACTICE. 

ceived  such  legislation  beyond  their  powers  or  not,  those  laws 
were  repealed,  or  fell  into  neglect. 

§  252.  There  are,  probably,  no  extant  records  of  judicial  de- 
terminations, by  the  colonial  courts,  of  questions  relating  to 
status  or  condition,  having  the  international  or  quasi-mterna- 
tional  character  ^which  was  before  indicated.  If  the  eighth 
article  of  the  agreement  between  the  New  England  colonies,  in 
1643,  and  the  seventh,  in  that  of  1672,  may  be  presumed  to 
have  been  supplemental  to  the  unwritten  law,  it  might  be  argued 
from  their  existence,  that  the  courts  in  those  colonics  could  not, 
without  them,  have  maintained  the  master's  claim,  {71  pais, 
over  the  persons  designated  by  the  term  servants.  But  it  is, 
perhaps,  equally  just  to  infer  that  the  object  of  the  compact 
was,  not  so  much  to  give  a  legal  existence  to  the  right  of  the 
alien  owner,  as  to  facilitate  its  peaceable  establishment  by  giving 
the  local  authorities  power  to  adjudicate  on  a  claim  or  demand 
to  be  made  by  him  before  them,  in  the  first  instance  ;  and,  after 
the  judicial  establishment  of  the  right,  to  maintain,  in  his  be- 
half, the  custody  of  the  slave  or  servant  while  within  the  limits 
of  the  forum,  or,  it  may  be  said,  to  deliver  up  the  slave  or  ser- 
vant to  the  master,  when  he  could  repass  the  territorial  limits 
of  the  forum. ' 

§  253.  As  to  indentured  servants,  it  is  not  unlikely  that  a 
variety  of  practice  obtained  in  the  different  colonies  as  to  the 
international  recognition  of  their  relations  towards  the  persons 
claiming  their  services  under  the  law  of  another  jurisdiction. 
From  the  order  sent  out  from  England,  in  1633,^^  the  Virginian 
order  in  reference  to  Dromond's  servant,'  and  the  clauses  just 
referred  to  in  the  New  England  Articles,  it  may  be  inferred  that 
the  judicial  tribunals  did  not,  generally,  consider  it  their  25ro- 

'  It  is  to  be  noticed  that  even  if  the  relation  between  the  alien  owner  and  servant 
or  slave  was,  in  any  colony,  supported  by  the  unwritten  private  international  law,  yet  the 
owner  could  not,  by  it  alone,  make  any  claim  upon  the  public  authority  for  the 
deliver)/  of  such  servant  or  slave.  He  would  have  the  right  to  seize  the  body  of 
such  servant  or  slave,  (making  a  claim  in  pais,)  but  then  his  right  could  be  deter- 
mined upon  and  a  delivery  be  made  to  him  only  in  some  action  brought  in  behalf  of 
the  alleged  servant  or  slave.  Under  the  compact  only  could  there  be  a  delivery  on 
claim. 

»  Ante,  p.  229,  note  1 

'  Ante,  p.  231. 


THE   JUDICIAL   PRACTICE.  331 

vince  to  enforce  tlie  obligations  of  sucli  persons,  in  the  absence 
of  legislative  enactment.' 

As  has  been  already  observed,  the  relation  of  minor  appren- 
tices to  their  masters  may  have  been  at  the  same  time  judicially 
recognized,  in  case  of  the  claim  of  an  alien  master  to  a  fugitive 
apprentice,  under  the  national  law  having  a  personal  extent  to 
subjects  of  English  race.  But  it  is  highly  probable  that  the 
articles  in  the  New  England  compacts  were  practically  applied 
to  this  class  of  persons,  as  well  as  to  others  bound  to  a  service 
for  years. 

§  254.  It  is  also  highly  probable  that,  under  the  New  Eng- 
land compacts,  the  term  "  servants"  was  taken  to  include  negro 
slaves.     But,  whatever  inference  might  be  drawn  from  this  for 
or  against  the  validity  of  the  master's  right  under  the  unwritten 
international  law,  there  can  be  little  doubt  that,  in  all  the  colo- 
nies, slavery  continued  to  be  judicially  supported  in  the  case  of 
negro  slaves  introduced  from  other  jurisdictions,  except  so  far 
as  such  introduction  may  have  been  limited  by  legislative  enact- 
ment ;  and  this,  whether  such  slaves  were  brought  in  to  be  per- 
manent residents  or  were  only  sojourners,  either  accompanying 
a  non-resident  owner  or  being  fugitives.     And  this,  it  may  be 
supposed,  was  the  case  even  in  those  colonies,  if  any  such  there 
were,  where  the  local  slavery  may  have  been  considered  the  con- 
dition of  a  legal  person,  as  contrasted  with  chattel  slavery.^ 
And  even  in  Massachusetts,  if  there  was  a  time,  prior  to  the 
Kevolution,  when  no  domiciled  negro  could  have  been  held  there 
as  a  slave,  it  is  probable  that  the  relation  between  owners  and 
slaves,  domiciled  elsewhere,  would  have  been  judicially  main- 
tained. 

§  255.  Of  all  the  cases  decided  in  the  English  courts,  which 
were  cited  in  the  fourth  chapter,*  that  of  the  negro,  Somerset, 

'  But  since,  in  the  earlier  period  of  the  colonial  history,  persons  were  occasionally 
banished  from  some  one  of  the  colonies  under  a  sentence  to  be  sold  as  servants  in 
some  other  colony,  it  was  evidently  presupposed  that  such  sentence  would  be  recog- 
nized in  the  latter.  , 

'  It  may  be  inferred  that  this  was  the  case,  because  the  contrary  has  never  been 
asserted  in  the  cases  which  have  occurred  since  that  period. 

'  Amon<r  these  mi^ht  have  been  noted,  next  to  Butts  vs.  Penny,  Sir  1  horn  as 
Grantham's  case,  (168C,)  as  given  in  3  Mod.  R.  120  ;  "  He  bought  a  monster  m  the 


332  THE    SCOTCH    CASES. 

is  the  only  one  in  which  the  question  of  freedom  and  servitude 
appears  as  one  to  be  decided  by  private  international  law.  The 
circumstances  of  that  case  have  been  already  stated  in  the 
opinion  delivered  by  Mansfield.  The  master  and  slave  were 
recognized  to  be  the  domiciled  inhabitants  of  a  colony  ;  the 
master  having  done  no  act  by  which  he  acquired  a  domicil  in 
England,  and  the  power  of  the  negro  to  acquire  it  separately, 
animo  manendi,  by  having  the  intention  to  do  so,  manifestly 
depended  on  an  anterior  question,  whether  he  was  or  was  not  a 
free  person.' 

§  256.  Two  Scotch  cases  are  cited  in  the  notes  to  the  report 
of  Somerset's  case,  in  20  Howell's  St.  Tr.,  from  Morrison's 
Diet,  of  Decisions,  vol.  xxxiii,  tit.  Slave.  The  first,  entitled 
Sheddan  against  a  negro,  was  in  1757.  The  owner  proposed 
to  carry  the  slave  back  to  Virginia  and  brought  his  claim  be- 
fore the  courts,  when  the  latter  refused  to  go.  The  negro  died 
before  any  decision  could  be  rendered.  The  other  case,  entitled, 
Joseph  Knight,  a  negro,  against  John  Wedderburne,  occurred 
1775-1778.  The  negro  had  been  in  Scotland  several  years  and 
had  married  there,  still  rendering  services,  but  after  claimed  to 
be  free.  On  pleading,  the  master  claimed  a  riglit  either  to  his 
perpetual  service,  in  Scotland,  or  to  send  him  back  to  the  plan- 
tation s — Jamaica. 

The  case  being  heard  before  the  sheriff,  he  found  "  that  the 
state  of  slavery  is  not  recognized  by  the  laws  of  this  kingdom,' 

Indies,  wliicli  was  a  man  of  that  country,  who  had  the  perfect  shape  of  a  child  grow- 
ing out  of  his  breast  as  an  excrescency,  all  but  the  head.  This  man  he  brought  hither, 
and  exposed  to  the  sight  of  the  people  for  profit.  The  Indian  turned  Christian  and 
was  baptized,  and  was  detained  from  his  master.  The  master  brought  a  homine  repleg- 
iaiulo.  The  sheriff  returned  that  he  had  replevied  the  body,  but  did  not  say  the  body 
in  which  Sir  Thomas  claimed  a  property,  whereupon  he  was  ordered  to  amend  his  re- 
turn. And  then  the  Court  of  Common  Pleas  bailed  him."  The  marginal  note  is: 
"  Homine  replegiando  lies  for  a  baptized  infidel  detained  from  his  master.'" 

"  But  it  does  not  appear  that  the  return  was  ever  argued,  or  that  the  court  gave 
any  opinion  in  this  case,  and,  therefore,  nothing  can  be  inferred  from  it." — Hargrave's 
note,  20  Howell's  St.  Tr.  55. 

'  See  ante,  note  at  the  foot  of  page  109. 

'  The  15  Geo.  3,  cap.  28,  (1775,)  is  an  act  for  altering,  explaining,  and  amending 
several  acts  of  the  parliament  of  Scotland,  respecting  colliers,  coal-bearers,  and  salters; 
recites,  "  Whereas  by  the  statute  law  of  Scotland,  as  explained  by  the  judges  of  the 
courts  of  law  there,  many  colliers,  <fec.,  are  in  a  state  of  slavery  or  bondage,  bound  to 
the  collieries  and  saltworks  where  they  work,  for  life,  transferable  with  the  collieries 
and  saltworks,  when  the  original  masters  have  no  further  use  for  them  ;  and  whereas 


FORCE    OF    BRITISH    PRECEDENTS.  333 

and  repelled  the  defender's  claim  to  a  perpetual  service."  On 
being  heard  before  the  Lords  of  Session,  the  court  "  were  of 
opinion  that  the  dominion  assumed  over  this  negro,  under  the 
law  of  Jamaica,  being  unjust,  could  not  be  supported  in  this 
country  to  any  extent ;  that,  therefore,  the  defender  had  no  right 
to  the  negro's  service  for  any  space  of  time,  nor  to  send  him  out 
of  the  country  against  his  consent ;  that  the  negro  was  likewise 
protected  under  the  act  of  1701 ,  c.  6,  (the  act  for  preventing 
wrongous  imprisonment,  and  against  undue  delays  in  trials,) 
from  being  sent  out  of  the  country  against  his  own  consent. 
The  judgments  of  the  sheriff  were  approved  of,"  &c.' 

§  257.  Cases  of  this  kind  occurring  in  the  British  islands 
during  the  colonial  period  will  have  a  pecuUar  value  in  indicat- 
ing the  relative  extent  of  the  various  personal  laws  prevailing 
in  the  British  Empire,  and  how  far  the  rights  and  obhgations 
incident  to  the  personal  condition  or  status  of  private  persons 
were  sustained  by  them,  independently  of  the  territorial  hmits 
of  the  local  jurisdiction.*  But  so  far  as  the  several  jurisdictions 
of  the  empire,  in  determining  the  personal  condition  of  private 
j)ersons  were,  towards  each  other,  in  the  relation  of  distinct  in- 
dependent nationalities,  these  decisions  will  have  had  in  the 
colonies,  only  the  force  of  foreign  judicial  decisions. 

§  258.  The  so-called  rule  of  comity,  regulating,  in  the  forum 
of  jurisdiction,  the  international  operation  of  foreign  laws,^  has 
been  described  as  being  always  operative,  except  where  limited 
by  local  statute  or  usage.^     It  may  be  thought  then  that,  if 

persons  are  discouraged  and  prevented  from  learning  the  art  or  Lusiness  of  colliers, 
&c.,  by  their  becoming  bound  to  the  collieries  and  saltworks  for  life,  where  they  shall 
work  for  the  space  of  one  year,  &c."  P'rom  which  language  it  would  appear  that  the 
servitude  arose  from  judicial  constructions  of  the  first  contract.  This  statute  was  not 
sufBcient  to  free  these  people,  another  being  passed  in  1799.  Sec  also,  1  Barrington 
on  Stat.  1  Rich.  2,  note  9,  in  3d  ed.,  and  the  argument  in  Knight  agst.  Wedderburne, 
which  is  given  in  20  Howell's  State  Tr.,  in  notes  to  Somerset's  case. 

'  1  Burge's  Comm.  on  CoL  and  For.  Law,  p.  741.  Boswell,  who  was  in  Edin- 
burgh at  the  time  of  the  argument,  1777,  says  in  his  Life  of  Johnson,  "  a  great 
majority  of  the  Lords  of  Session  decided  for  the  negro.  But  four  of  their  number,  the 
Lord  President,  Lord  ElHock,  Lord  Monboddo,  and  Lord  Covington  resolutely  main- 
tained the  lawfulness  of  a  status,  which  has  been  acknowledged  in  all  ages  and  countries, 
and  that,  when  freedom  flourished,  as  in  old  Greece  and  Rome."  And  on  a  preceding 
page  he  has  given  an  argument,  dictated  by  Dr.  Johnson,  in  favor  of  the  negro's  free- 
dom, together  with  some  observations  of  his  ovra  maintaining  the  other  side. 

»  Ante,  §  243.  '  Ante,  §  88.  *  Ante,  §  122. 


834  roRcB  OF  foreign  precedents. 

valid  at  all,  this  rule  should  be  sufficient  in  itself,  and  exclude 
any  rule,  otherwise  derived,  for  determining  in  the  forum  the  in- 
ternational allowance  of  tlie  effects  of  foreign  laws  ;  and  that 
any  reference  to  foreign  precedents  for  this  purpose  is  either  su- 
perfluous or  inconsistent  with  the  rule.  This  may  be  true,  and 
the  proper  doctrine  seems  to  be  that,  unless  the  foreign  prece- 
dents have  been  adopted  into  the  local  customary  law  by  some 
previous  judicial  action,  the  so-called  rule  of  comity  must 
control  the  action  of  the  tribunal.  But  since  the  judicial  appli- 
cation of  this  rule  involves  inquiry  into  the  personal  extent  of 
the  local  law,  as  being  either  limited  or  universal,  and  through 
this  the  judicial  recognition  of  a  universal  jurisprudence  or  laio 
of  nations  forming  part  of  the  law  of  the  forum,'  a  reference  to 
foreign  precedents  is  generally  indispensable  in  the  practical  ap- 
plication of  the  rule  of  comity,  where  local  usage  or  statute  is 
wanting  :  and  hence  in  every  forum  or  jurisdiction  a  private  in- 
ternational law  is  formed  which  may  be  juristically  spoken  of  as 
existing  in  or  among  all  civilized  states,  or,  as  a  body  of  rules 
which,  being  known  from  the  customary  juridical  action  of  many 
states,'  obtains  judicial  recognition  in  any  supposed  forum  of 
jurisdiction.^  There  is,  at  least,  a  constantly  increasing  pre- 
sumption that  the  private  international  law  of  any  forum  cor- 
responds with  the  rules  received  contemporaneously  in  other 
countries  in  like  cases. 

For  this  reason  the  judicial  decisions  of  European  courts, 
during  the  colonial  period,  in  cases  concerning  the  international 
recognition  of  personal  condition  or  status  and  the  relation  of 
master  and  slave,  and  the  general  rules  received  by  them  in 
such  cases,  according  to  the  testimony  of  approved  jurists,  may, 
with  the  English  cases,  be  referred  to  as  illustrations  of  a  pri- 
vate international  law<  taking  elBfect  in  and  between  the  several 


'  Ante,  §§  89-101. 

'  Anie,  §§  36,  76. 

'  As  such  it  is  spoken  of  as  existing  independently  of  the  will  of  some  one  particu- 
lar state,  (Curtis,  J.,  in  19  Howard  R.  594-,  595,)  and  becomes  the  special  subject  of 
trcGlis'S  like  Story's  Conflict  of  Laws,  Fcelix's  Droit  International  Prive,  and  the 
fourth  volume  of  Mr.  Phillimore's  elaborate  treatise  on  International  Law. 

*  International  law  is  here  supposed  to  have  customary  existence,  proved  or  illus- 
trated by  foreign  juridical  authority,  usually  judicial  and  juristicaL     Foreign  legisla- 


LAW   IN    THE    NETHERLANDS.  335 

jurisdictions  of  the  empire,  so  far  as  they  were  in  similar  cir- 
cumstances. 

The  proper  force  of  these  precedents  under  an  application  of 
the  rule  of  comity  in  any  particular  jurisdiction  of  the  empire, 
and  as  being  evidence  of  rules  receivable  for  universal  jurispru- 
dence or  the  laio  of  nations,  will  be  separately  examined. 

§  259.  There  are  not  many  judicial  decisions  on  record 
which  can  be  referred  to  as  having  had  this  kind  of  authority 
during  the  colonial  period.  Burge,  in  Commentaries  on  Colo- 
nial and  Foreign  Law,  vol.  I.,  p.  739,  cites  from  Christinaeus, 
decis.  torn,  iv.,  decis.  80,  n.  4,  a  case  in  which  the  supreme 
council  of  Mechlin,  in  1531,  refused  to  issue  a  warrant  to  take 
a  person  who  had  escaped  from  Sj)ain,  where  he  had  been 
bought  and  legally  held  in  slavery.  The  reason  given  for  the 
decision  is — "  propter  libertatis  personarum  usum  hie  per  aliquot 
ssecula  continue  observatum."  The  same  case  seems  to  have 
been  noticed  in  Zypee,  Kot.  Belg.,  1.  6,  p.  180. 

Groenewegen,  De  Legibus  Abrogatis  et  Inusitatis  (1649,) 
L.  I.,  tit.  8,  is  another  authority  as  to  the  law  of  the  Nether- 
lands on  this  point.  "  Quamvis  servos  habere  Christianis  nefas 
non  sit,  si  modo  herili  in  servos  potestate  non  abutantur,  sed 
eos  secundum  Christianam  lenitatem  et  mansuetudinem  trac- 
tant.  Epist.  ad  Phil.  Ephes.  6  vers.  5,  cum  seqq.  Colos.  3, 
22.  Tit.  29.  1  Petr.  2,  18.  1  Corinth.  7,  20.  1  Timoth.  6,  1. 
Amis  de  Repub.  3,  sect.  4  &  7,  cfe  Pol.  I.  i.  c.  4.  Servitutem 
tamen  adeo  exhorruere  majores  nostri  ut  uno  ferme  libertatis 
nomine,  utque  fama  Gra3cis  juxta  ac  Latinis  monumentis  max- 
ime  celebrati  sunt  Germani,  teste  Philijijjo  Cidverio,  Germ. 
Antiq.  I.  I.  c.  38,  in  princ,  atque  hinc  servitus  paulatim  ab  usu 
recessit,  ejus  nomen  hodie  apud  nos  exolevit  ;  adeo  quidem  ut 
servi,  qui  aliunde  hue  adducuntur,  simul  ac  imperii  nostri  fines 
intrarunt,  invitis  ipsorum  dominis  ad  libertatem  proclamare 
possint  ;  id  quod  et  aliorum  Christianorum  gentium  moribus  re- 
ceptum  est,  vide  Costum.  van  Antwerp),  tit.  38,  art.  1, 2.  Grot.  In- 
troduct.  I.  1,  p>art4,  §  2.    Gudelin  dejure  noviss.  1. 1,  c.  4.  Perez, 

tion  also  may  be  declaratory  of  this  customary  law,  but  there  is  a  presumption  that 
it  is  intended  to  be  alterative  or  supplementary  to  some  supposed  deficiency. 


336  LAW   OF    HOLLAND    AND   POLAND. 

c.  de  nudojur.  Quirit.,  n.  3.  ZypaB,  notit.  jnr.,  I.  6,  tit.  I. 
Christin.  vol.  4,  decis.  80,  n.  2,  et  seqq.  Papon,  notair.  3,  I.  7, 
de  lettr.  d'  affranchi,  princ.  Charond.  Pandect,  du  droict  franc. 
I.  2,  c.  2,  sect,  mergin.  droict  de  suite  ou  poursuite.  Autumn, 
confer  de  his  qui  ad  eccles.  Mornac,  in  I.  19.  Denique  D.  ex 
quihiis  calls,  major.  Boer,  ad  cons.  Bitur.  tit.  1,  §  1.  Adde 
qu£e  dixi  C.  de  Agricol." 

§  260,  An  occurrence  related  by  Wicquefort, '  is  sometimes 
cited  as  a  recognition  of  the  same  doctrine  by  Poland  during  the 
period  of  her  independent  existence.'^  It  in  fact  only  shows  that 
the  estates  of  Holland,  i.  e.,  the  government,  were  willing,  in  fa- 
vor of  a  powerful  nation,  to  construe  the  law  of  nations  to  the 
prejudice  of  a  weaker,  and  in  derogation  of  the  rights  of  persons 
under  private  law,  as  exj^lained  by  their  o"v\ti  jurists.  A  certain 
Pole  left  his  own  country  and  went  into  Muscovy,  where  he  at- 
tached himself  to  the  suite  of  an  ambassador  who  was  to  pro- 
ceed to  Holland.  It  does  not  appear  that  in  Muscovy  he  had 
sold  himself  as  a  slave,  or  lost  the  status  of  a  freeman.^  Wic- 
quefort  says, — "  s'estoit  retiree  en  Moscovie  et  s'estoit  mis  d  la 
suite  de  deux  Ambassadeurs  que  le  Czaar  envoyoit  en  HoUande  : 
mais  son  dessein  estoit  de  ne  retourner  point  dans  un  pais,  ou 
tout  le  monde  est  esclave.  II  se  deroba  de  la  suite  des  Ambassa- 
deurs et  se  retira  chez  le  Kesident  de  Pologne  ;  qui,  craignant  ce 
qui  lui  arriva  depuis,  le  fit  evader.  Les  Muscovites  en  firent 
tant  de  bruit,  que  les  Estats  de  Hollande,  apres  avoir  fait  occu- 
per  toutes  les  avenues  de  la  maison,  y  firent  entrer  quelques 
ofiiciers  et  soldats  pour  faire  la  recherche  du  fugitif  lis  n'y 
trouverent  personne,  et  cependant  ils  firent  cet  affront  au  min- 
istre  public  du  roy  de  Pologne."  The  Polish  Ambassador  may 
be  supposed  to  have  held  that  a  slave  became  free  either  by 
being  in  Holland  or  by  being  within  the  house  of  the  repre- 
sentative of  his  native  country.  But  the  question  here,  appa- 
rently, Avas  one  of  allegiance,  not  of  personal  status. 

§  261.  Wicquefort  in   commenting  on  this,  thus  declares 

*  Ambassadeur  et  ses  Functions,  par  M.  de  Wicquefort,  vol.  I.,  p.  418. 

'  1  Phillimore,  p.  342. 

'  As  the  case  is  cited  by  some  writers,  e.  g.  Phillimore,  /.  c. 


LAW   OF    FRANCE.      BODIN.  337 

the  French  law  in  such  cases  :  "  Le  Polonois  n'estoit  point 
esclave  ne  du  Czaar  ;  et  s'il  I'estoit  devenu  en  allant  demeurer 
en  Moscovie,  il  recouvra  sa  liberte  naturelle  en  mettant  le  pi6 
dans  iin  pais  qui  ne  nourrit  point  d'esclaves,  et  oi'i  on  ne  devroit 
point  scavoir  ce  que  c'est  que  de  servitude  ou  d'esclavage.  Les 
Jurisconsultes  Francois  disent,  que  I'air  de  France  est  si  bon  et  si 
benin,  que  des  qu'un  esclave  entre  dans  le  Koiaume,  mesme  u  la 
suite  d'un  ambassadeur,  il  ne  respire  que  liberte  et  la  recouvre 
aussi-tost." 

Bodin,  in  his  Republic,  book  1,  c.  5,  appears  to  be  the  oldest 
French  authority.  (Knolles'  transl.  London,  1606,  p.  42.) 
"  But  in  France,  although  there  be  some  remembrance  of  old 
servitude,  yet  it  is  not  lawful  there  to  make  any  slave,  or  to  buy 
any  of  others  :  insomuch  that  the  slaves  of  strangers,  so  soon 
as  they  set  their  foot  within  France  become  frank  and  free  ;  as 
was  by  an  old  decree  of  the  court  of  Paris  determined  against 
an  ambassador  of  Spain,  who  had  brought  a  slave  with  him 
into  France.'  And  I  remember  that  of  late  a  Geneva  merchant 
having  brought  with  him  unto  Thoulouze  a  slave  whom  he  had 
bought  in  Spain,  the  host  of  the  house,  understanding  the  mat- 
ter, persuaded  the  slave  to  appeal  unto  his  liberty.  The  mat- 
ter being  brought  before  the  magistrates,  the  merchant  was 
called  for :  the  Attorney  General,  out  of  the  records,  showed 
certain  ancient  privileges  given  (as  is  said)  unto  them  of  Thou- 
louze by  Theodosius  the  Great,  wherein  he  had  granted,  that 
slaves  so  soon  as  they  come  into  Thoulouze  should  be  free.  The 
merchant  alledging  for  himself  that  he  had  truly  bought  his 
slave  in  Spain,  and  so  was  afterward  come  to  Thoulouze,  from 

'  Bynkerslioek,  Du  Juge  Competent  des  Ambassadeurs,  (translated  into  French 
byBarbeyrac,  and  published  in  his  edition  of  Wicquefort's  Ambassador,)  ch.  15,  §  3, 
refers  to  Albericus  Gentihs,  De  Jure  Belli,  Lib.  II,  and  this  passage  in  Bodin,  for  this 
case  of  setting  free  in  France  the  slave  of  an  Ambassador.  He  refers  to  lurcheiier, 
(Legat.,  Lib.  2,  c.  1,  num.  233,)  as  disapproving  of  this.  Bynkershoek  agrees  with 
him ;  but  their  objection  is  founded  on  the  privileges  granted  to  Ambassadors  by  in- 
ternational law.  Barbeyrac  says,  in  a  note,  that  the  decision  was  made — "En  vertu 
de  I'usage  regu  en  France,  et  ailleurs,  scion  lequel  un  esclave  devient  libre,  des  qu'il  a  mis 
le  pie  dans  les  terres  du  pais.  Voiez  les  auteurs,  cit^s  par.Groenewegen,  De  Legib. 
Abrog.  ad  tit.  Instit.,  De  his  qui  sui  vel  alicni  juris,  p.  5.  Mais  ici  I'esclave,  eu-qualite 
d'homme  appartenant  a  I'Ambassadeur,  est  regardc  comme  n'etant  point  dans  le  pais," 
But  this  objection  to  it  makes  the  precedent  stronger  in  the  case  of  private  persons. 

In  the  negro  case,  15  Causes  Cel.  p.  12,  Loysel's  Institutes  is  cited  as  mentioning 
the  same  or  a  similar  case  occurring  in  1571. 

22 


338  LAW   OF   FRANCE.      BODIN. 

thence  to  go  home  to  Geneva,  and  so  not  to  be  bound  to  the 
laws  of  France.  In  the  end  he  requested  that  if  they  would 
needs  deal  so  hardly  with  him,  as  to  set  at  liberty  another  man's 
slave,  yet  they  should  at  least  restore  unto  him  the  money  he 
cost  him  :  whereunto  the  Judges  answered,  that  it  was  a  mat- 
ter to  be  considered  of.  In  the  mean  time  the  merchant,  fear- 
ing lest  he  should  lose  both  his  dutiful  slave  and  his  money  also, 
of  himself  set  him  at  liberty,  yet  covenanting  with  him  that  he 
should  serve  him  so  long  as  he  lived."' 

In  the  French  edition,  Paris,  1577,  the  corresponding  pas- 
sage is  as  follows.  "  Et  me  sousvient  estant  en  Thoulouzo 
qu'un  Genevois,  y  passant,  fut  contraint  d'afFranchir  un  esclave 
qu'il  avait  achepte  en  Espagne,  voyant  que  les  Capitouls  le  vou- 
loient  declarer  franc  et  libre,  tant  en  virtu  de  la  coustume  gene- 
rale  du  Koyaume,  que  d'un  privilege  special,  que  TEmpereur 
Theodoze  le  Grand  leur  donna,  ainsi  qu'ils  disaient,  que  tout 
esclave  mettant  le  pied  en  Tholouze  etait  franc  ;  chose  toute- 
fois  qui  n'est  pas  vrai-semblable."^ 

In  the  argument  of  the  case  of  Jean  Boucaut  and  others, 
claimed  as  the  slaves  of  Verdelin  in  the  French  Causes  Cel^- 
bres.  tom.  15,  p.  12,  a  case  is  mentioned  as  having  occurred  in 
1552,  at  the  siege  of  Metz,  where  a  demand  having  been  made  by 
the  Spanish  General,  for  a  slave  who  had  escaped  into  the  town, 
upon  M.  de  Guise  commanding  the  place,  the  latter,  "  fit  re- 
ponse  que  la  franchise  que  I'esclave  avoit  acquise  dans  la  ville 
de  Metz,  selon  I'ancienne  et  bonne  coutume  de  France,  ne  lui 
permettoit  pas  de  le  lui  rendre." 

'  In  the  original,  after  this  mention  of  the  contract  for  a  life  service,  is  added — 
"  qui  est  une  chose  rejettee  en  terme  de  droit " — this  apparently  has  been  overlooked 
by  the  English  translator.  The  meaning  is  probably  that  such  a  contract  would  not 
be  enforced  by  a  legal  tribunal. 

'  From  the  remainder  of  the  passage  it  appears  that  the  author's  doubt  does  not  re- 
fer to  the  correctness  of  the  rule,  but  to  its  origin  ;  that  is,  whether  it  was,  as  sup- 
posed, a  local  or  municipal  rule  derived  from  a  special  Imperial  decree.  He  argues 
that  no  Roman  colony  nor  even  Rome  itself  ever  had  such  a  privilege  in  the  times  of 
the  Roman  Empire,  and  refers  the  decision  to  the  general  custom  of  France — "  tant  en 
virtu  de  la  coustume  generale  du  Royaume."  The  language  of  the  ordinance  of  Thou- 
louse  is  given  by  Mr.  Justice  Campbell,  19  Howard,  497,  and  his  argument  rests  upon 
the  doctrine,  thus  repudiated  by  Bodin, — that  the  law  or  principle  was  derived  from 
"  special  ordinances  or  charters." 

Two  other  instances  are  cited  by  M.  Tribaud  in  Causes  Celebres,  tom.  15,  pp.  31, 
32,  of  slaves  having  been  declared  free  in  Thoulouse,  after  having  escaped  from  Spain. 


CUSTOMARY    LAW    OF    FRANCE.  339 

Barrington  on  the  Statutes,  p.  254,  note,  says,  "  It  ap- 
pears from  Boulainvilliers,  that  the  question  was  formerly 
much  agitated  in  the  French  courts  of  justice  : '  but  in  the  In- 
stitutes Coustumiercs,  (published  at  Paris,  1679,)  it  is  laid 
down  with  great  precision  that  a  slave  becomes  free  as  soon  as 
he  enters  the  French  territories  and  is  baptized.  '^Toutes  per- 
sonnes  sont  franches  en  ce  Koyaume,  et  si-tost  qu'un  esclave  a 
atteint  les  marches  d'iceluy  se  faisant  baptiser  est  affranchi." 

In  a  treatise  entitled,  Remarques  du  Droit  Fran9ois,  &c., 
4to.  Paris,  1680,  par  M.  H.  M.  Advocat,  p.  11,  commenting  on 
the  title  De  Jure  Personarum,  it  is  said,  "  La  France  n'admet 
point  de  difference  des  personnes,  sgavoir  d'estre  libre  ou  serf, 
car  par  la  loy  generale  de  ce  Royaume  toutes  les  personnes  sont 
libres  et  franches  et  I'on  observe  le  premier  article  de  la  Cou- 
tume  de  Bourg.  qui  ordonne  de  la  sorte,  C'est  pourquoy  quand 
un  serf  et  un  esclave  se  refugie  en  France,  aussi-tost  qu'il  en  a 
atteint  les  marches  et  qu'il  s'est  fait  baptiser,  il  est  affranchy."  ^ 

Argentre,  torn.  I.  p.  4,  is  another  authority  cited,  1  Burge, 
p.  738,  to  the  effect  that  slaves  on  entering  France  became  free. 

§  262.  According  to  Heineccius,  in  a  note  as  editor  in  1726, 
Lugd.  Batav,  to  Vinnius'  Commentaries,  Lib.  I,  tit.  3,  the  law 
of  Germany  differed  from  that  of  France  and  Holland,  at  least 
in  respect  to  fugitive  serfs.  After  referring  to  Bodin,  Charondas, 
Gudehn,  Zypae,  etc.,  as  authority  for  escaped  slaves  becoming 
free, — "  Itaque,  in  Belgis  et  Gallia,  et  servi  ipso  jure  liberi  fiunt 

'  It  is  to  be  observed  that  at  this  time  serfdom,  as  the  condition  of  a  Christian 
European,  still  existed  in  France.  The  author  of  the  work  last  cited  in  the  text  adds 
to  the  statement  there  quoted — "  II  est  vray  qu'en  Bourgogne,  il  y  a  des  mortaillables, 
que  la  France  peut  appeller  adjectos  fflebw,  c'est  a  dire,  des  hommes  tellement  attaches, 
a  la  terre  qu'ils  ont  pris  par  emphiteose,  qu'ils  ne  la  peuvent  quitter.  Ce  qui  est  un 
espuce  de  servitude."  And  Bodin,  at  the  page  last  cited,  says, — "  I  have  seen  the  Lord 
of  the  'White  Rock  in  Gascongne  claim  to  have  not  only  a  right  over  his  manumised 
subjects,  and  also  that  they  were  bound  to  trim  his  vines,  to  till  his  grounds,  to  mow 
his  meadows,  to  reap  and  thresh  his  corn,  to  carry  and  recarry  whatsoever  he  should 
command  them,  to  repair  his  decayed  house,  to  pay  his  ransom,  and  also  the  four  ac- 
customed payments  used  in  this  realm ;  but  also  that  if  without  his  leave  they  should 
change  their  dwelling  places  wherein  they  were  born,  or  depart  out  of  liis  land,  he 
might  lead  them  home  again  in  a  halter ;  unto  all  which  the  aforesaid  services  his 
manumised  people  yielded,  saving  unto  the  last,  which  by  a  decree  of  the  Parliament 
of  Thoulouse  was  cut  off,  as  prejudicial  unto  the  right  of  liberty."  This  is  noticed 
in  argtimcnt  of  the  negro  case,  vol.  15,  Causes  Celubres  (ed.  Amsterdam,  1766,)  p.  11. 
See  Jfainmorle  in  Encyc.  Fr.,  20  Howell's  State  Tr.  p.  1370.  An  edict  of  Louis 
XVI.,  1779,  was  for  the  abolition  of  this  kind  of  lerfdom. 


340  LAW  OF  THE  GERMAN  EMPIRE. 

eo  adventatantes.  Ast  in  Germania  non  solum  dominis  con- 
ceditur  ut  possint  homines  proprios  vindicare,  etsi  eo  profugerint 
ubi  ilia  servitus  non  sit  recepta  (vid.  Dan.  Mevii  Consil.  jurid. 
de  %tatii  et  vindicatione  hominum  propr.)  verum  etiain-quibus, 
dam  locis,  ipso  jure  fiunt  servi  quicunque  perigrini  eo  adveniunt, 
emorandi  et  habitandi  causa,  veluti  in  Algonia,  ubi  ideo  ssepe 
auditur  paroemia  :  Die  Luft  macJd  eigen,  id  est,  ipse  aer  ho- 
mines proprios  facit.  Hert  de  homin.  propr.  sect.  3,  §  3.  Tale  et 
olim  fuit  jus  Wildfangiatus  in  Palatinatu  electorali  et  provinciis 
vicinis,  de  quo  Londorp.  Act  Pub.  Continuat.  Lib.  10,  p.  126." 

By  the  private  international  law  of  these  provinces  then, 
the  peaceful  alien,  not  jirotected  by  some  special  treaty,  and  of 
whatever  condition  at  home,  was  regarded  either  as  a  stray  chat- 
tel which  the  lord  of  the  soil  might  appropriate,  or  an  enemy 
who  might  be  enslaved  ;  as  under  the  doctrine  of  the  early  Ro- 
man law.  See  Ante,  p.  151,  note  2.  The  passage  indicates  a 
disregard  of  all  private  international  law  as  a  protection  for 
aliens,  whether  bond  or  free.  The  right  accorded  to  feudal 
lords  of  reclaiming  their  serfs,  was  an  eflfect  of  a  law  prevailing 
as  between  the  different  petty  sovereigns  recognized  in  the  con- 
stitution of  the  German  empire,  at  a  time  when  feudal  bondage 
still  existed  in  the  respective  dominions  of  each.' 

§  263.  To  the  Flemish  and  French  authorities,  before  cited, 
so  far  as  they  justify  the  international  disallowance  of  the  mas- 
ter's claim  of  ownership,  it  may  perhaps  be  objected  that  the 
distinction  of  race  which,  in  the  fourth  chapter,  was  described 
as  having  about  the  close  of  the  15th  century  acquired  recogni- 
tion in  universal  jurisprudence — the  laio  of  nations — supporting 
the  chattel  slavery  of  Moors,  Negroes  and  Indians,  was  not  no- 
ticed, and  that  the  rule  given  by  these  authorities  should  be 
taken  to  apply  only  to  European  serfs,  bondsmen  under  feudal 

'  In  Dred  Scott's  case,  19th  Howard  495,  Mr.  Justice  Campbell  cites,  from  the 
Capitularies  of  Charlemagne  a  rule  for  the  rendition  of  fugitive  slaves.  Chattel 
slavery  as  well  as  serfdom,  was  probably  then  prevailing  in  aU  the  dominions  of 
this  Emperor.  See  Ante,  p.  159,  n.  Other  similar  laws  of  that  time  might  have 
been  cited.  "Etiam  Caroli  M.,  Ludovici  Pii  et  Lotharii  leges  de  servis  supersunt  in 
Lib.  44,  Car.  M.  et  Longob.  Imo  et  Guilielmi  Siciliaj  Regis  et  Frederici  Imp.  ex- 
tant de  servis  fugitivis  constitutiones  in  plac.  Neap.  Sed  ab  hoc  tempore  id  est  A.  C. 
1212,  aut  non  multo  secus,  Christ  iani  se  mutuo  in  servitutem  redigere  desierunt"  Hu- 
berus,  Prcelectiones,  Lib.  I.  tit.  IV.  6. 


LAW  APPLIED  TO  MOORS  AND  NEGROES.       341 

lords.  In  the  case  of  Jean  Boucaut  and  others,  claimed  as 
slaves  by  Verdelin,  at  Paris,  in  the  year  1738,  (Causes  Cel^- 
bres,  ed.,  Amsterdam,  1766,  torn.  15,  p.  30,)  M.  Tribaud,  the 
advocate  for  the  owner,  endeavors  to  limit  the  extent  of  the 
general  principle  according  to  the  distinction  of  race  ; — "  Le 
principe  est  vrai  dans  le  cas  oi\  tout  autre  esclave  qu'un  esclave 
n^gre  arrivera  dans  ce  Royaume." 

Two  instances  of  the  application  of  the  same  rule  to  Moors 
or  Mohammedans  are  given  by  the  Procureur  du  Roi,  advocate 
for  the  negroes,  in  the  same  case,  p.  51,  "  Dans  le  Journal 
Chronologique  et  Historique  de  D.  Pierre  de  Saint  Romuel  on 
voit  qu'en  I'annee  1571  une  marchande  de  Normandie  ayant 
amene  a  Bordeaux  plusieurs  Maures  pour  les  vendre,  le  Parle- 
ment  de  Guyenne,  par  un  arret  solemnel,  les  mit  tons  hors  de 
I'esclavage,  parceque  la  France,  mere  de  liberte,  ne  pennet 
aucun  esclave."  He  also  relates  that  in  the  time  of  Henri  III., 
the  Mohammedan  captives  held  as  galley  slaves  in  a  Spanish 
public  ship,  stranded  on  the  French  coast,  were  set  at  liberty 
by  the  king's  decree,  and  sent  to  Constantinople,  notwithstand- 
ing the  protest  of  the  Spanish  ambassador. 

The  question  of  ownership  in  the  first  case  might,  from  the 
domicil  of  the  trader  and  her  intention  to  sell  in  France,  be  said 
to  have  belonged  to  internal,  not  international  private  law  ; 
and  the  second  cannot  perhaps  be  properly  considered  a  judicial 
precedent,  since  it  was  a  direct  exercise  of  the  sovereign  power, 
to  be  distinguished  from  the  action  of  judicial  tribunals.' 

This  case  of  Boucaut  and  Verdelin,  which  was  argued  be- 
fore the  French  admiralty,  is  the  only  one  similar  to  that  of 

'There  is  an  Abrege  de  la  Republique  de  Bodin,  published,  London,  1755,  chezJeaa 
Nourse,  two  volumes,  12mo.  The  preface  has  no  signature.  In  this  abridgment, 
L.  1,  c.  9,  it  is  said,  "  La  France  *  *  •  elle  a  meme  voulu  depuis,  que  tout  homme 
qui  mettroit  le  pied  sur  ses  terres  fat  libre  dfes  ce  moment,  sans  faire  attention  qu'il 
est  centre  le  droit  des  gens  d'enlever  a  I'etranger  passant  et  maitre  de  Tesclave,  un  bien 
qui  lui  appartient.  Les  famous  de  penser  sont  de  mode  chez  les  Francais  comme  les 
adjustments.     Lorsqu'une  opinion  saisit  les  esprits  elle  en  devient  I'idole." 

There  is  no  such  remark  in  the  unabridged  edition,  Paris,  1577,  Co.,  nor  can  any 
similar  observation  be  found  in  Knolles'  translation.  The  Abrege  appears  to  be  that 
of  the  President  de  Lavie,  which  he  afterwards  recast  and  published  in  1760,  under 
the  title — Des  corps  politiques  et  de  leurs  gouvernements.  (See  Hrunet's  Manuel  du 
Libraire,  Tome  1,  p.  386.)  From  which  it  may  be  inferred  that  he  had  introduced 
much  of  his  own  thought  into  the  abrdgd. 


342  LAW    OF    FRANCE.       VERDELIN'S   SLAVES, 

Somerset  and  to  the  Scotcli  case  "which  is  recorded  as  having: 
occurred  in  France. 

§  264.  In  the  case  occurring  at  the  siege  of  Metz,  the  Hber- 
ty  of  the  escaped  slave  was  dechired  to  be  the  legal  effect  of  the 
general  customary  law  of  the  kingdom — I'ancienne  et  bonne 
coutume  de  France.  In  those  mentioned  by  Bodin,  occurring 
in  Paris  and  Thoulouse,  the  freedom  was  claimed  under  certain 
special  grants  to  those  cities,  declaring  that  slaves  escaping  into 
their  municipal  jurisdictions  should  thereby  become  free.  The 
slaves  of  Verdelin  were  also  in  Paris,  and  it  is  important  to  dis- 
tinguish whether  the  judicial  decision  in  their  favor  was  made 
under  the  charter  of  Paris,  regarded  as  a  legislative  act,  alter- 
ing a  rule  of  the  customary  unwritten  law  of  the  land,  or  was 
based  on  the  latter  and  general  principles  of  private  interna- 
tional law  therein  contained. 

Mr.  Justice  Campbell  in  Dred  Scott's  case,  19th  Howard's 
Rep.,  p.  497,  after  citing  the  cases  mentioned  by  Bodin,  ob- 
serves, "  The  decisions  were  made  upon  special  ordinances  or 
charters,  which  contained  positive  prohibitions  of  slavery,  and 
where  liberty  had  been  granted  as  a  privilege  ;  and  the  history 
of,  Paris  furnishes  but  little  support  for  the  boast  that  she  was  a 
"  sacro-sancta  civitas,"  where  liberty  always  had  an  asylum,  or 
for  the  "  self-complacent  rhapsodies  "  of  the  French  advocates, 
in  the  case  of  Verdelin,  which  amused  the  grave  lawyers  who 
argued  the  case  of  Somerset.^  The  case  of  Verdelin  was  de- 
cided upon  a  special  ordinance,  which  prescribed  the  conditions 
on  which  West  India  slaves  might  be  introduced  into  France, 
and  which  had  been  disregarded  by  the  master." 

It  would  be  more  accurate  to  say,  that  the  claim  of  Verde- 
lin was  based  upon  a  special  ordinance,  &c.,  or  that  claims  like 
that  of  Verdelin  might  have  been  supported  by  the  special  ordi- 

'  Mr.  Justice  Campbell  and  "  the  grave  lawyers  -who  argued  thecase  of  Somerset," 
may  have  had  good  cause  to  undervalue  the  character  of  Paris  as  an  asylum  for  lib- 
erty ;  in  view  of  the  acts  of  arbitrary  power  which  had  occurred  there  at  various  times. 
But  the  political  or  civil  misfortune  of  the  Parisians  has  not  the  slightest  bearing  on 
the  qiiestion  of  legal  status,  as  a  question  of  international  law.  Compare  ante,  §  47, 
and  note.  "  The  force  of  these  examples  is  not  weakened  by  the  reflection  that  they 
were  furnished  by  what  was  at  the  time  an  undeniably  despotic  state."  1  Phillimore, 
p.  342. 


LAW    OF    FRANCE.      VERDELIN'S   SLAVES.  343 

nance.  The  case  tvas  decided  in  favor  of  the  freedom  of  the  ne- 
groes, upon  the  unwritten  or  common  law  of  France,  as  in- 
dicated in  the  authorities  and  precedents  before  cited,  talcing 
eifect  in  the  failure  of  the  master  to  bring  his  claim  within  the 
protection  of  positive  legislation — the  edict  of  Louis  XV., 
1716 — allowing  a  certain  class  of  French  colonial  subjects  to 
bring  their  slaves  into  France  under  certain  limitations.'  The 
detention  on  the  part  of  the  master  was  sought  to  be  justified 
on  the  ground  that  he  had  substantially  complied  with  the  re- 
quisitions of  the  edict  of  1716  ;  and  further,  while  it  was  ad- 
mitted that,  under  the  customary  or  unwritten  law  of  the  king- 
dom, foreign  slaves  or  the  slaves  of  foreigners  would  become  free 
by  being  brought  into  France,  it  was  also  urged  that  the  right 
of  the  French  colonist  rested  on  the  juridical  will  of  the  national 
sovereignty  expressed  in  the  edict  of  Louis  XIV.,  1615,  known 
as  the  Code  Noir,  and  was  therefore  a  legal  right  in  every  part 
of  the  French  empire  ;  that  the  edict  of  Louis  XV.,  1716,  only 
gave  additional  protection  to  that  right  in  certain  cases,  but 
never  had  the  effect  of  destroying  it,  and  that  therefore  no 
French  tribunal  could  refuse  to  recognize  the  right  of  such  colo- 

'  Therefore  the  language  of  Mr.  Justice  Campbell  on  page  499  of  the  Report,  is 
open  to  material  exception,  where  he  says — "  This  sentence  [in  Somerset's  case,]  is 
distinguishable  from  those  cited  from  the  French  courts  [apparently  intending  to  in- 
clude the  case  of  Verdelin's  slaves]  in  this:  that  there  positive  prohibitions  existed 
against  slavery,  and  the  right  to  freedom  was  conferred  on  the  immigrant  slave  by 
positive  law  ;  whereas  here,"  &c. 

The  preamble  to  the  edict  shows  that  the  prevailing  doctrine  had  been  that  in  such 
cases  slaves  became  free  by  the  unwritten  law,  "  Comme  nous  avous  6te  informes  que 
plusieurs  habitants  de  nos  isles  de  I'Amorique  desirent  envoyer  en  France  quelques-uns 
de  lenrs  esclaves,  pour  les  confirmer  dans  les  instructions  et  dans  les  exercises  de  notre 
religion,  et  pour  leur  faire  apprendre  quelque  art  et  metier,  dont  les  colonies  recev- 
roient  beaucoup  deutilite,  par  le  retour  de  ces  esclaves':  mais  que  ces  habitans  craig- 
nent  que  les  e-sclaves  ne  pretendent  etre  libres  en  arrivant  en  France,  ce  qui  pouvoit 
causer  aux  dits  habitants  une  perte  considerable  et  les  detourner  d'un  object  aussi 
pieux  et  aussi  utile."  Provision  is  then  made  by  Art.  2,  3,  that  the  colonists  may 
bring  with  them  slaves,  for  the  purposes  mentioned  ;  being  required  to  obtain  permis- 
sion from  the  governor  in  the  colony,  and  also  to  register  themselves  in  the  district  of 
disembarkation  in  France.  The  5th  article  is  as  follows,  "  Les  esclaves  negres,  de 
I'un  et  de  I'autre  sexe,  qui  seront  conduits  en  France  par  leur  maitres,  ou  qui  seront  par 
eux  envoyes,  ne  pourront  pretendre  avoir  acquis  leur  liberty,  sous  pretexte  de  leur  ar- 
rivee  dans  le  Royaume,  et  seront  tenus  de  retourner  dans  nos  colonies  quand  leur 
maitres  le  jugeront  h  propos.  Mais  faute  par  les  maitres  des  esclaves  d'observer  les 
formalites  prescrites,  par  les  precedeus  articles,  les  dits  esclaves  seront  libres.'et  ne  pour- 
ront ttre  reclames."  M.  Denisart,  Decisions  .  Nouvelles,  tit.  Negres,  as  cited  by  Mr. 
Hargrave  in  20  Howell's  State  Trials,  p.  23,  n.,  appears  to  have  considered  the  edict, 
in  protecting   the  master's  right,  as  an  hlteration  of  the  common  law  in  France. 


344  THE   GENERAL    CUSTOM. 

nist,  whatever  might  be  the  rule  of  private  international  law 
pontained  in  the  customary  law  of  France  applicable  to  aliens 
and  their  slaves.' 

In  1758,  Francisque,  a  negro  slave  bought  by  his  master  in 
Hindostan,  was  brought  by  liim  to  France.  Francisque  claimed 
his  liberty  :  his  master  contended  that  he  had  carefully  fulfilled 
the  formalities  prescribed  by  the  "  Code  Noir  ;  "  it  was  answered 
that  this  law  only  affected  African  and  American  slaves,  and 
could  not  be  extended  to  the  East  Indies.  The  slave  obtained 
his  liberty. '^ 

§  265.  If,  then,  at  a  date  shortly  before  the  American  Revo- 
lution, the  practice  of  British  and  European  judicial  tribunals 
and  the  writings  of  private  jurists  indicated  any  rule  respecting 
the  international  recognition  of  the  right  of  an  alien  owner  and 
the  co-relative  obligation  of  his  slave  existing  under  the  law  of 

•*  Tribaud,  for  the  master,  says,  15,  C.  C,  p.  30,  "  On  ne  connoit  point,  il  est  vrai, 
d'esclave  en  France,  et  quiconque  a  mis  le  pied  dans  ce  Royaume  est  gratifi6  de  la 
libertc.  Mais  quelle  est  rapplieatiou,  ct  qu'elle  est  la  distinction,  du  principe  ?  Le 
principe  est  vrai  dans  le  cas  ou  tout  autre  esclave  qu'un  esclave  nfcgre  arrivera  dansce 
Royaume."  But  he  then  proceeds  to  limit  the  exception  still  further,  applying  it  only 
to  slaves  domiciled  in  the  French  colonies.  He  does  not  even  allow  the  right  to  a 
French  merchant  arriving  in  the  kingdom  with  savages  whom  he  should  claim  to  be 
his  slaves.  "  Par  exemple,  qu'un  estranger,  qti'un  negociant  Francois,  arrive  dans  ce 
lioj'aimie  avec  des  sauvages  qu'il  pr6tendera  etre  ses  esclaves :  qti'un  Espagnol,  qu'un 
Anglois  vienne  en  ce  Royaume,  avec  des  esclaves  n^gres  dependans  des  colonies  de  sa 
nation ;  xoWb.  le  cas  dans  lequel  par  la  loi,  par  le  privilege  de  la  franchise  de  ce  Roy- 
aume, la  chaine  de  I'csclavage  so  brisera,  et  la  liberie  sera  acquise  ^  de  pareils 
esclaves."     And  to  the  same  effect  on  p.  26. 

^  1  Phillimore's  luternat.  Law,  p.  342,  citing  Denisart,  Decisions  Nonvelles,  torn  iii., 
p.  406,  tit.   N'-gre,  n.  45. 

From  some  of  the  Flemish  and  French  authorities  which  have  already  been  cited, 
it  appears  that  the  condition  of  absolute  slavery  was  lawful  in  Spain  and  Portugal  du- 
ring 16th  and  17th  centuries.  Absolute  slavery,  as  a  condition  distinct  from  serfdom 
or  vassalage,  is  recognized  in  Las  Siete  Partidas.  (A.  D.,  1303),  Part.  IV.,  tit.  21, 
1.  i. — "  Son  tres  maneras  de  siervos ;  la  primera  es  de  los  que  cativan  en  tiempo  de 
guerra  seyendo  enemigos  de  la  fc  ;  la  secunda  es  de  los  que  nascen  de  las  siervas :  la 
tercera  es  quando  algimo  que  es  libre  se  dexa  vender." 

From  the  following  it  would  appear  that  slavery  had  become  unknown  in  Spanish 
law,  except  as  the  condition  of  a  negro  domiciled  in  the  Indies.  Asso  and  Manuel, 
Institutes,  &c.  Johnston's  transl.  of  the  6th  ed.  Book  I.,  tit.  v.,  c.  1.  "  With  regard 
to  their  civil  state  or  capacity,  men  are  considered,  1,  as  natural  born  subjects  of  their 
kingdoms,  and  as  aliens  or  foreigners  ;  2,  as  nobles,  persons  entitled  to  the  rights  of 
nobility  (hidalgos),  knights  (caballcros)  and  plebeians  ;  3,  as  laymen  and  ecclesias- 
tics. The  distinction  into  free  men  and  slaves,  which  is  found  in  our  law  in  p.  4,  tit. 
21  and  22,  is  not  now  obsen'ed  or  acknowledged,  unless  it  be  vnth  respect  to  the  ne- 
groes employed  in  the  Indies  in  working  the  mines,  or  held  in  slavery  by  private  in- 
dividuals, but  even  as  regards  this  circumstance,  it  is  foreign  to  this  treatise." 

In  Denmark,  negro  slavery  would  probably  have  been  recognized  under  the  code 
of  Christian  V.,  already  cited,  Ante,  p.  291. 


PUFENDORFF  AND  VATTEL. 


345 


their  domicil,  that  rule  was,  it  would  seem,  that  in  a  country 
wherein  the  condition  of  slavery  could  not  exist  as  an  effect  of 
the  internal  or  local  law,  or  wherein  no  domiciled  subject  of 
whatever  race  or  complexion  could  be  held  in  slavery,  the  co- 
relative  rights  and  obligations  of  masters  and  slaves,  domiciled 
in  other  countries,  could  not  be  protected  and  enforced  by  the 
judicial  tribunals  of  the  forum. 

§  266.  A  passage  has  herein  been  noted  from  the  President 
de  Lavie's  Abrege  of  Bodin's  Republic,  in  which  the  author 
of  the  abridgment  says, — objecting  to  what  he  admits  was  the 
judicial  practice  in  France, — that  it  is  contrary  to  the  law  of 
nations  to  take  from  the  stranger,  passing  through  the  country 
and  being  the  master  of  a  slave,  a  property  (un  bien)  which 
belongs  to  him. 

If  any  other  juristical  authority  of  an  earlier  date  than  Som- 
erset's case  is  extant,  thus,  in  terms,  maintaining  the  claim  of 
the  owner  when  in  a  foreign  country,  it  seems  to  have  escaped 
the  observcition  of  the  jurists  whose  research  has,  since  that 
time,  been  directed  to  these  inquiries. 

There  are,  however,  certain  passages  in  the  treatises  of  Gro- 
tius,  Pufendorff  and  Vattel  which  have  been  cited,  in  recent 
cases,  as  sustaining  the  same  doctrine  ;  the  doctrine  thus  enun- 
ciated being  at  the  same  time  s^ipposed  to  operate  as  private 
laiv  ;  that  is,  a  rule  by  which  the  rights  and  duties  of  private 
persons  might  be  determined  by  judicial  tribunals. 

These  writers  must  be  taken  to  have  been  of  no  less  authori- 
ty shortly  before  the  date  of  Somerset's  case  than  they  are  at 
present,  and  it  is  now  proposed  to  examine  here,  what  the  doc- 
trine is  which  they  support,  and  how  far  they  may  have  con- 
sidered it  applicable  to  questions  of  personal  status.' 

§  267.  These  authors,  it  will  be  recollected,  proposed  to 
write  of  the  law  of  nations  regarded  as  that  rule  of  which  na- 
tions, in  their  political  personality,  are  the  subjects  ;  being  a  law 

•  Pufendorff's  Treatise  de  Jure  Nat.  et  Gen.,  was  published  about  1672,  a  transla- 
tion in  French  appeared  in  1712,  if  not  earlier,  and  an  English  version  in  1717.  The 
•work  of  Vattel  on  the  Law  of  Nations  first  appeared  in  1758;  a  posthumous  edition 
with  the  author's  manuscript  notes  in  1773.  The  principal  English  version  was  publish- 
ed in  1797- 


346  vattel's  doctrine. 

in  the  imperfect  sense.  The  rights  which  they  define  are  rights 
belonging  to  nations,  in  respect  to  other  nations  and  their  sub- 
jects, and  the  duties  arc  the  duties  of  nations,  towards  other 
nations  and  their  subjects. 

This  is  more  particularly  true  of  Yattel/  whose  writings  are 
most  relied  upon  in  maintaining  the  -doctrine  above  stated. 
The  passages  in  his  treatise  whicli  have  been  cited  to  sustain  it, 
are  in  Book  II.,  chapters  8,  9,  and  10  ;  on  reference  to  winch  it 
will  be  seen  that  he  holds  it  to  be  the  duty  of  every  state,  under 
the  law  of  nations,  to  allow  the  subjects  of  other  states  a  transit 
or  passage  through  its  territories  with  their  property,  and  that, 
correlatively,  the  subjects  of  any  one  state  have  a  right  to  pass 
through  the  territories  of  other  states,  with  their  property. 

This  right,  in  the  citizens  or  subjects  of  any  one  state,  he 
describes  as  existing  in  two  conditions  or  degrees  ;  corresponding 
to  two  different  degrees  of  duty  in  all  other  states,  thus — 

a.  There  is  a  right  in  private  persons,'  founded  in  their  ne- 
cessities or  circumstances,  which  makes  it  the  imj^erative  duty  of 
a  state  to  allow  strangers  to  enter  and  leave,  and  sometimes  to 
pass  through  its  territory,  and  to  carry  with  them  such  projierty 
as  may  be  necessary  for  the  objects  in  respect  to  which  their 
entry  or  transit  is  necessary.' 

b.  There  is  a  less  perfect  right,  arising  out  of  circumstances 
in  which  a  less  imperative  duty  is  laid  by  the  law  of  nations 
upon  states,  requiring  them  to  allow  what  Vattel  denominates 
"  innocent  passage "  to  strangers  and  their  merchandise,  even 
when  no  such  necessity  exists  as  in  the  former  case  ;  thus  giv- 
ing a  correlative  right  to  such  strangers,  to  enter  and  leave  or 
to  pass  through  the  territory  with  their  property.^ 

'  See  Vattel,  Preliminaries,  §§  1,  2,  3. 

'  The  persons  spoken  of  here  are  private  individuals  ;  a  large  part  of  the  discus- 
sions of  the  older  ^rriters  on  the  right  of  transit,  refers  to  the  passage  of  ai-mies  and 
bodies  of  men  having  a  political  unity  and  national  character.  Puf,  B.  III.,  c.  3,  § 
5;  Grotius,  L.  II.,  c.  2.  Vattel  also  speaks  of  such  cases.  B.  11.,  §§  116-121,  in 
eh.  IX. 

3  Vattel,  B.  II.,  §  123,  in  ch.  IX.,  §  135,  in  ch.  X. 

*  Vattel,  B.  n.,  §§  132-4,  in  cli.  X. 

Pufend.  B.  III.,  c.  3,  §  86,  "  Among  these  matters  of  harmless  profit  which  na- 
ture engages  us  to  allow  freely  to  all  men,  Grotius  reckons  the  permitting  goods  and 
merchandise  to  be  carried  through  our  dominions."     Pufendorff  and  Grotius  seem  to 


vattel's  doctrine.  347 

§  268.  The  extent  of  the  rights  of  strangers  under  this  rule 
is  further  defined  by  Vattel,  when  he  shows  what  the  state,  in 
view  of  its  duty  in  this  respect,  may  not  do,  and  from  what  por- 
tions of  the  ordinary  powers  of  sovereignty  such  strangers  are 
exempted.  Thus  he  says  that  the  stranger  is  still  a  member  of 
his  own  nation  and  treated  as  such,  (B.  II.,  §  107  :)  the  state 
cannot  claim  any  power  over  the  person  of  the  foreigner,  that 
is,  to  detain  liis  person  within  its  territorial  dominion,  except 
where  he  violates  its  laws,  (§  108  :)  it  cannot  require  of  him  those 
personal  services  which  it  may  require  of  its  own  citizens,  he  is 
not  subject  to  those  "  laws  which  have  relation  to  the  title  of 
citizen  or  subject  of  the  state,"  (§  101,)  that  is,  the  law  which 
determines  the  rights  and  duties  of  private  persons  in  a  relation 
between  them  and  the  state  regarded  as  their  sovereign.  "  He 
cannot  indeed  be  subject  to  those  burdens  that  have  only  a  rela- 
tion to  the  quality  of  citizen,"  (§  106.) 

And,  as  regards  the  duty  of  the  state  towards  the  stranger 
in  relations  with  respect  to  things,  the  state  does  not  acquire 
'over  the  property  which  he  has  with  him,  nor  even  over  what 
he  may  there  acquire,  the  same  power  which  it  has  in  respect 
to  the  property  of  a  citizen,  (§  109.)  The  property  which  he 
brings  with  him  does  not  cease  to  belong  to  him,  merely  on  ac- 
count of  his  having  come  to  a  foreign  country,  (§  109  :)  the  state, 
in  reference  to  which  he  is  an  alien,  cannot  take  it  away,  nor 
attach  burdensome  conditions  to  its  possession  or  enjoyment  ; 
and  he  is  not  subject  to  pay  ordinary  taxes  levied  on  citizens, 
but  only  such  as  are  laid  for  public  improvements  of  which  he, 
in  common  with  the  citizen,  has  the  benefit,  such  as  tolls,  on 
rivers  and  roads,  harbor  duties,  &c.,  (§  132-144.)' 

Not  only  is  the  right  of  the  stranger,  as  a  private  person,  to 
be  respected,  but  his  property  is  to  be  regarded  as  part  of  the 
wealth  of  the  country  of  which  he  is  citizen,  §  104,  81  :  in  con- 
found the  right  on  a  general  right  in  all  mankind  to  use  the  earth  for  purposes  of  com- 
merce, and  they  limit  the  right  of  bringing  property  to  cases  where  it  is  brought  for 
gain.  Pufendorff  connects  the  inquiry  with  the  propriety  of  markets  of  the  staple,  to 
which,  in  some  countries,  foreign  traders  were  then  restricted ;  being  also  obliged  to 
buy  of,  and  sell  to  citizens  only. 

'  And  Puf  B.  III.,  c.  3,  §  G,  discusses  the  question  of  levies  on  passing  rivers  and 
straits ;  such  as  the  Danish  Sound  levies. 


348  INTERNATIONAL    STANDARD    OF    PROPERTY. 

sequence  of  which  its  possession,  after  his  decease  in  the  foreign 
country,  is  to  be  determined  not  by  its  laws,  but  by  those  of  the 
former,  (§  109-113.) 

§  269.  No  mention  is  made  of  slaves,  as  property  or  other- 
wise, by  Vattel :  but  taking  the  term  "  law  of  nations,"  as  used 
by  Lavie,  to  be  equivalent  to  the  same  term  as  used  by  Vattel, 
i.  e.,  as  a  law  acting  on  nations  as  its  subjects,  the  proposition 
of  the  former — that  it  is  contrary  to  the  law  of  nations  to  take 
from  the  stranger  a  property  which  belongs  to  him — is  equally 
maintained  by  the  latter. 

But  to  whatever  degree  this  maxim  may  limit  the  power  of 
a  state,  in  reference  to  strangers,  there  must  be  some  standard, 
included  in  the  rule,  of  what  is  and  what  is  not  proi)erty.  The 
duty  of  the  state  and  the  correlative  right  being  created  by  in- 
ternational law,  a  law  acting  on  nations  as  its  subjects,  the 
standard  of  property  or  the  definition  of  property,  must  be  one 
included  in  that  law.^  And  so  far  as  these  writers,  PufendorflF, 
Vattel,  and  others,  are  relied  on  as  the  authority  for  the  rule, 
their  definition  or  description  of  property  is  receivable  in  inter- 
preting the  rule. 

§  270.  Now  Vattel  and  Pufendorft*  are  among  those  who 
assume  the  existence  of  a  law  of  nature  ;  that  is,  a  law  which 
they,  individually,  derive  a  priori,'^  which  they  declare  is  the 
law  binding  on  all  mankind,  and  they  define  the  law  of  nations 
to  be  the  same  law  applied  to  nations,  states,  or  independent 
sovereignties,  as  its  subjects.^  It  would  appear  therefore  that 
the  opinion  of  these  authors,  as  to  what  is,  or  is  not  property  by 
the  law  of  nature,  must  be  received  in  applying  a  rule  stated 
by  them  as  acting  on  nations  as  its  subjects.  If  these  authors 
do  not  recognize  men  as  things  by  the  law  of  nature,  or  if  they 
declare  that  all  natural  j)ersons  have,  by  the  law  of  nature, 
rights  which  are  inconsistent  with  the  legal  quality  of  things — 


*  Nothing  being  said  to  imply  that  it  is  determined  by  the  national  law  of  a 
single  state.  The  criterion  is  therefore  independent  both  of  the  criterion  of  property 
in  the  state  wherein  the  claimant  is  a  foreigner,  and  that  whose  citizen  or  subject 
he  is. 

"  Compare  ante,  p.  16,  note  4. 

'  Vattel,  Prelim.,  §§  i,  5. 


INTERNATIONAL   STANDARD   OF   PROPERTY.  349 

the  objects  of  action,  or  objects  of  possession  and  property — 
then  no  nation,  as  a  subject  of  the  rule  above  stated,  is  bound 
to  recognize  any  natural  person  as  a  chattel  or  thing,  the  object 
of  property  or  possession.  Vattel  makes  no  mention  of  slavery 
in  his  works,  and,  in  sec.  4  of  the  Preliminaries,  says  :  "  It  is  a 
settled  point  with  writers  on  the  natural  law  that  all  men  in- 
herit from  nature  perfect  liberty  and  independence,  of  which 
they  cannot  be  deprived  without  their  own  consent."' 

§  271.  This  criterion  for  determining  whether  Vattel  and 
Pufendorff  intended,  in  using  the  term  property  in  a  rule  of  in- 
ternational law,  to  recognize  property  in  slaves,  should  be  suffi- 
cient to  decide  question  so  far  as  the  rule  rests  upon  their  au- 
thority. But  if  the  rule  is  received  independently  of  any  j)ar- 
ticular  jurist,  and  if  it  is  proper,  in  matters  of  law,  to  reject  all 
a  priori  statements  of  a  law  of  nature,  still  a  standard  of  what 
is  or  is  not  property,  embraced  in  international  law,  must  some- 
where exist.  This  can  only  be  the  law  of  nature  derived  a 
joosteriori,  or  those  deiinitions,  rules,  maxims,  &c.,  which,  in 
point  of  fact,  have  been  recognized  by  nations  (whether  they 
ought  or  ought  not  to  be  so  recognized.)  And  this  is  nothing 
else  than  universal  jurisprudence  or  the  laiv  of  nations,  in  that 
sense,  which  may  enter  into  public  international  law  as  well  as 
into  2^'i'ivate  international  law.^ 

This  laio  of  nations,  universal  jurisprudence,  is  changeable  ; 
so  that  the  applicability  of  the  rule  above  stated  to  a  question 
of  personal  condition  or  status,  at  the  time  referred  to,  would 
depend  upon  the  question — whether,  in  point  of  fact,  the  chattel 
slavery  of  natural  persons  was  or  was  not  customarily  recognized 
by  nations  in  their  respective  municipal  (national)  laws. 

§  272.  It  will  be  seen  that,  in  this  view,  the  question  of  the 
right  of  a  stranger  to  hold  slaves  as  property  or  chattels,  under 

'  Pufendorff  considers  the  legal  nature  of  slavery  very  fully  in  B.  III.,  c.  3,  §  6. 
B.  YI.,  c.  3,  §§  2,  8,  taking  the  same  view;  while  admitting  the  lawfulness  of  bon- 
dage or  slavery  of  legal  persons.  In  B.  IV.,  c.  4,  treating  of  the  origin  of  dominion  or 
property,  he  ascribes  it  to  human  compact  or  institution  ;  but,  it  must  be  noticed,  that  he 
there  means  the  right  of  private  property  as  opposed  to  community,  not  the  distinction 
of  property  from  persons. 

'  Compare  ante,  §§  10,  19,  49 ;  and  see  1  Phillimore  Int.  Law,  §  223,  and  Ap- 
pendix I. 


350  vattel's  doctrine. 

the  mle  laid  down  by  Vattel,  is  almost  identical  -with  that 
which,  it  has  herein  been  supposed,  would  have  existed  in  the 
different  parts  of  the  British  empire  during  the  colonial  period  ; 
— whether  the  right  of  the  master,  of  British  race  or  descent, 
in  respect  to  his  African  or  Jndian  slave,  was  a  "  common  law 
right,"  or  incidental  to  the  common  law  right  of  property  and 
to  be  supported,  as  such,  in  every  part  of  the  empire.  In  each 
case  the  question  is  of  the  recognition  of  slavery  in  universal 
jurisprudence,  the  historical  law  of  nations. 

The  support  given  to  slavery  by  this  international  rule  of 
transit,  considered  in  this  connection,  will  therefore  be  herein- 
after ascertained,  when  pursuing  the  inquiry,  how  far  slavery 
could  be  supported  by  recognition  of  the  common  law  right  of 
the  master. 

§  273.  But,  aside  from  this  question  of  what  shall  or  shall 
not  be  considered  property,  Vattel  does  not  say  that,  in  conse- 
quence of  the  state's  duty,  created  under  international  law,  the 
law  of  the  state  will  not  affect  the  stranger  in  liis  person  or 
property  ;  or  that  his  relations  towards  other  persons,  either  in 
respect  to  persons  or  in  respect  to  things  will  not  be  affected  by 
the  law  of  the  state  in  which  he  is  found.  On  the  contrary,  he 
states  that,  with  the  exceptions  already  mentioned,  the  general 
private  law  of  the  forum  applies  to  strangers  as  well  as  citizens, 
or  as  he  says,  "  the  general  laws  made  to  maintain  good  order 
and  which  have  no  relation  to  the  title  of  citizen  or  of  subject 
of  the  state,"  &c.  (B.  II.,  §  101.)  And  although  in  this  place 
the  thought  of  the  author  was  principally  directed  to  that  part 
of  the  laws  which  maintains  good  order  by  a  system  of  police 
and  punishment,  yet  the  whole  passage  shows  that  in  these 
"  general  laws  "  he  intended  to  include  that  law  which  decides 
on  the  possession  and  security  of  property,  or  what  is  sometimes 
called  "  the  law  of  meum  et  tuum." 

In  the  next  section,  (§  103),  Vattel  declares,  "For  the 
same  reason,  [i.  e.,  this  subjection  to  the  "  general  laws,"]  dis- 
putes that  may  arise  between  foreigners  or  between  a  foreigner 
and  a  citizen,  are  to  be  determined  by  the  judge  of  the  place, 
and  according  to  the  laws  of  the  place." 


RULE   OF   TRANSIT.  351 

§  274.  Thus  far  in  this  inquiry  into  the  doctrines  of  these 
foreign  publicists,  the  right  of  the  stranger  has  been  considered 
as  one 'existing  under  ptihlic  international  law,  or  in  other  words, 
as  a  right  correlative  to  a  duty  on  the  part  of  the  state.  But, 
according  to  the  principles  which  have  been  stated  in  the  first 
and  second  chapters,  these  duties  and  their  corresponding  rights 
are  not  within  the  sphere  of  judicial  tribunals,  determining  the 
rights  and  duties  of  private  persons,  whether  citizens  or  for- 
eigners. 

It  has  been  observed  in  the  second  chapter  that  there  is 
much,  in  the  treatises  on  private  international  law  or  the  con- 
flict of  laws,  to  justify  the  idea  that  a  court  is  to  regulate  its 
conduct  by  public  international  law  and  to  determine  the  rights 
of  private  persons,  by  first  ascertaining  what  the  duty  of  the 
state  is  under  international  law.  Supposing  then  that  this 
may  be  done,  that  strangers  may,  under  this  international  rule 
of  transit,  have  a  right  as  against  the  state,  yet  it  would  seem 
that  a  tribunal  could  recognize  it  only  when  correlative  to  an 
absolute  duty  on  the  part  of  the  state.  Now,  according  to  Vat- 
tel's  distinction,  no  nation  is  hound  by  international  law  to  ad- 
mit strangers  with  their  property  in  all  possible  circumstances. 
The  ordinary  entry  and  departure  of  strangers  is  not,  according 
to  Vattel,  founded  on  a  right  and  duty  thus  imperatively  justi- 
fied by  international  law.  It  is  only  in  circumstances  creating 
some  degree  of  necessity  that  the  duty  is  created  for  the  state, 
and  the  nature  of  the  property  that  may  be  introduced  under 
the  correlative  right  is  restricted  by  those  circumstances.  It 
would  seem  that  the  courts  can  recognize  slave  property  in  such 
cases  only  ;  if  its  recognition  is  to  depend  on  this  rule  of  inter- 
national law  ;  and  that  the  ordinary  or  "  innocent  passage,' 
which  is  not  accorded  in  view  of  any  such  obligation,  does  not 
give  the  stranger,  being  the  master  of  a  slave,  any  such  exemp- 
tion from  the  laws  of  the  forum, ' 

'  Pufendorff,  B.  III.,  c.  3,  §  6.  "For,  truly  speaking,  the  law  of  humanity  does 
not  seem  to  oblige  us  to  grant  passage  to  any  other  goods  except  such  as  are  abso- 
lutely necessary  for  the  support  of  their  life  to  whom  they  are  thus  conveyed."  And 
in  §  7, — "  as  the  case  is  very  different  whether  a  man  desires  way  through  my 
grounds,  because  without  this  privilege  he  would  be,  as  it  were,  excluded  from  the 


352  THE    ERROR    AS   TO   COMITY. 

§  275.  It  is  the  palpable  impossibility  of  determining  a  right 
in  private  persons,  when  the  correlative  duty  on  the  part  of  the 
state  is  indeterminable,  that  has  originated  a  juristical  belief 
in  the  doctrine  of  comity  as  commonly  understood  ;  the  comity 
of  the  nation  applied,  by  the  court,  for  the  nation  :  the  court  in 
that  case  determining  how  far  the  state  ought  to  admit  the 
laws  of  other  states  to  take  effect  on  persons  and  things  within 
the  territorial  jurisdiction  of  the  former.' 

If  a  state  or  a  government  which  had  allowed  strangers  to 
enter  its  territory  and  which  had  not  exercised  any  control  over 
them  should  permit  its  citizens,  as  private  individuals,  to  injure 
them  in  person  or  in  property,  that  state  or  government  would 
not,  of  course,  be  fulfilling  the  duty  defined  by  Vattel.  But 
when  strangers  appear  before  judicial  tribunals,  claiming  rights 
or  being  required  to  perform  certain  duties,  the  judicial  and 
administrative  officers  of  the  state  do  not  direct  their  conduct 
in  view  of  any  particular  duty  of  the  state  towards  the  stran- 
gers. The  courts  have  only  to  apply  a  rule  of  action  for  private 
persons  derived  from  the  will  of  the  state  without  reference  to 
the  duties  of  the  state.  The  question  before  them  may  be, 
whether  the  state  does  or  does  not  will  that  they  should  recog- 
nize the  relations  of  the  stranger  as  they  would  exist  in  the 
place  of  his  domicil.  In  ascertaining  the  will  of  the  state  on 
this  point,  they  may,  in  the  absence  of  positive  legislation,  refer 
to  the  usage  and  practice  of  other  nations  in  like  cases,  (that 
is,  to  what  they  have  done,  not  to  what  they  ought  to  do,)  and 
to  the  writings  of  private  jurists  so  far  as  they  arc  expository 
of  that  practice. '^ 

Vattel,  as  has  been  shown,  says  that  the  law  determining 
the  rights  and  duties  of  the  foreigners  is  the  law  of  the  forum 
of  jurisdiction.  This  proposition  is  strictly  true,  as  a  propo- 
sition oi public  international  law.  The  law  which  the  judicial 
tribunal  must  apply,  is  part  of  the  municipal  (national)  law  of 


■world  and  confined  to  solitude,  or  because  he  could  not  otherwise  carry  off  the  fruit 
of  his  own  land;  and  whether  he  makes  the  same  demand  purely  to  shorten  his  pas- 
sage, and  imposes  a  burthen  upon  my  estate,  not  tc  relieve  his  own  necessity,  but  to 
promote  his  convenience  and  ease." 

'  Ante,  p.  73,  74.  *  Ante,  §  93. 


THE   GENERAL    RULE."  353 

the  forum,  since  it  exists  or  is  law  by  the  juridical  will  of  the 
sovereign  of  that  forum  independently  of  the  will  of  every  other 
state  or  sovereign.  The  just  limits  of  his  subject  did  not  allow 
Vattel  to  go  further  and  explain  the  duties  of  judicial  tribunals. 
This  would  have  been  entering  the  limits  of  private  interna- 
tional law.  It  does  not  necessarily  follow  that  he  would  have 
said  that  the  tribunal  could  never  recognize  legal  effects  pro- 
duced by  the  law  of  a  foreign  state. 

§  276.  The  general  principles  considered  in  the  second  chap- 
ter will  operate  in  cases  wherein  there  is  no  precedent.  But 
the  courts  may  always  refer  to  the  international  practice  of 
other  countries,  which  they  may  assume  indicates  a  customary 
law  prevailing  in  all  countries,  their  own  included.  When 
such  customary  law  has  been  ascertained  the  courts  may  apply 
it,  not  as  indicating  the  duttj  of  the  state,  but  as  indicating  the 
ivill  of  the  state.  And  it  is  highly  important  to  observe  that 
the  rule  sought  is  customary  private  law — the  law  customarily 
applied  by  judicial  tribunals,  as  known  by  judicial  iDrccedents 
and  authors  who  treat  of  international  law  as  it  obtains,  not  as 
it  ought  to  obtain.  A  statute  enactment  therefore,  or  an  act  of 
the  sovereign,  as  such,  is  not  indicative  of  this  rule  of  customary 
law  ;  on  the  contrary  there  is  a  presumption  that  such  statute 
or  act  differs  from  the  rules  wliich  judicial  tribunals  might  law- 
fully enforce  in  like  circumstances. ' 

Now,  as  has  been  shown,  the  judicial  practice  and  the  writ- 
ings of  private  jurists  on  the  customary  law  of  Europe  during 
the  17th  and  18  th  centuries,  are  unanimous  in  declaring  the 
rule  to  be  against  the  international  recognition  of  slavery  in 
countries  where  it  cannot  exist  under  the  local  or  internal  law : 
they  make  no  exception.'^ 

§  "277.  The  right  of  the  foreigner  or  stranger  to  the  posses- 
sion of  property  which  he  may  bring  with  him  may  be  main- 

'  A  nie,  §  2.58. 

'  If  tliere  has  been  any  exception,  it  wonl^  appear  to  have  been  where  states  have 
been  so  s'tuated,  geographical. y,  th'it  tlie  passage  of  the  citizens  of  one  through  the 
territory  of  tl  e  other,  is  indispensable  to  ordinary  commercial  access  witii  tlic  r>  st  of 
the  world,  or  where  diflfdient  states  lie  ou  a  river  or  strait,  in  the  common  use  of 
which,  tha  subjects  of  one  state  must  unavoidably  be  sometimes  found  within  the  lim- 
its of  another. 

23 


354  SLAVES    NOT    PROPERTY   JURE    GENTIUM, 

tained  before  a  tribunal  as  a  riglit  recognized  by  universal 
jurisprudence,  or  the  law  of  nations  in  tlie  same  sense.  But 
this  is  only  when  the  citizen's  right  to  such  property  might  be 
equally  ascribed  to  that  law.  While  the  stranger  is  husband 
or  wife,  father  or  child,  in  the  forum  to  which  he  is  alien,  and 
owns  property  brought  with  him  and  acquired  in  the  place  of 
his  domicil,  and  has  rights,  in  these  respects,  as  fully  as  the  citi- 
zen who  is  husband  or  wife,  father  or  child,  and  owner  of  pro- 
perty— his  rights  are  recognized  by  that  part  of  the  law  of  the 
land  which  is  universal  jurisprudence,  supposed  to  be  the  same, 
in  its  origin  and  effect,  in  the  forum  as  in  the  place  of  domicil, 
though  in  each  it  is  maintained  by  a  different  sovereign  or 
source  of  law.  At  the  time  when  Bodin  wrote  he  could  perhaps 
say  of  slavery  that  it  was  then  "  approved  by  the  great  argu- 
ment and  consent  of  almost  all  nations,"'  and  he  might  there- 
fore have  excepted  to  the  decisions  of  the  French  courts,  on  the 
ground  that  by  refusing  to  maintain  the  right  of  the  master  to 
his  slave,  they  had  decided  "  contre  le  droit  des  gens,"  meaning 
universal  jurisprudence.  It  does  not  appear,  however,  that 
Bodin  ever  took  exception  to  the  decisions  of  the  French  courts 
in  respect  to  the  slaves  of  strangers,  either  as  being  contrary 
to  the  "  law  of  nations,"  in  any  of  its  significations,  or  on  any 
other  ground.' 

'  Ante,  p.  165,  note. 

'  From  an  examination  of  two  French  editions  and  the  English  version.  In  Repub. 
Lib.  I.,  c.  2,  ad  finem,  Bodin  says,  —  "For  as  for  the  laws  of  nations,  if  they  be  any 
of  them  unjust,  the  prince  may  abrogate  them  by  the  law  of  his  realmc,  and  forbid  his 
subjects  to  use  the  same  ;  as  we  said  before  of  servitude  and  slaves,  which,  by  a  dan- 
gerous example,  by  the  law  almost  of  all  nations  brought  into  commonwcalcs,  were 
agaiue  by  the  wholsome  decrees  of  many  princes,  well  agreeing  with  the  laws  of  na- 
ture, taken  away."     (Knolles'  Tr.,  p.  113.) 


CHAPTER    IX. 

OF  THE  PRIVATE  INTERNATIONAL  LAW  OF  THE    COLONIAL  PERIOD 
AFFECTING    CONDITIONS     OF     FREEDOM    AND    BONDAGE— THE 

SUBJECT  CONTINUED EXAMINATION  OF  SOMERSET'S  CASE   IN 

THIS  CONNECTION. 

§  278.  The  case  of  Somerset,  being  the  leading  precedent  in 
English  law,  and  having  occurred  shortly  before  the  separation 
of  the  colonies  from  the  mother  country,  has  been  the  subject  of 
much  juristical  comment.  It  will  now  be  here  attempted  to 
indicate  the  law  applicable  in  the  various  jurisdictions  of  the 
British  Empire,  at  that  date,  in  circumstances  similar  to  those 
of  this  case  ;  deriving  that  law  from  the  general  principles  and 
historical  facts  which  have  been  set  forth  in  preceding  chapters  • 
and  to  compare  it  with  this  decision,  the  European  authorities 
just  cited,  and  the  supposed  international  practice  of  the 
colonies. ' 

§  279.  The  application  of  the  general  principles  of  private 
international  law  to  the  recognition  of  those  relations  of  private 
persons  Avhich  constitute  conditions  of  freedom  and  its  opposites 
has  been  shown  in  the  second  chapter.  It  was  shown,  that  in 
the  absence  of  direct  legislation  or  of  judicial  precedents 
indicative  of  a  customary  international  rule,'^  applicable  to 
the  circumstances  of  the  case,  the  recognition  and  sup- 
port of  relations  of  private  persons  existing  under  a  for- 
eign   law,  (the    law    of  the    alien's    domicil,)    depends    upon 

'  As  stated  ant^,  g§  251-254. 

*Ante,  §  122.  It  has  been  remarked,  §  258,  that  foreign  pr3cedents.  by  tlie  re- 
cognition of  a  customary  private  international  law,  may  have  an  authority  similar  to 
that  of  local  precedents,  though  not  equal  in  degree. 


356  SLAVERY    JURE    GENTIUM. 

an  independent  judicial  recognition  of  their  accordance  with 
natural  reason,  according  to  certain  criteria.  It  has  been  there 
supposed  that  they  will  be  supported  (so  far  as  their  continued 
existence  remains  physically  possible)  if  attributable  to  princi- 
cii)les  of  universal  jurisprudence — the  historical  law  of  naiions, 
and  that  the  relations  thus  attributed  will  continue,  in  the 
state  to  which  those  persons  are  aliens,  as  results  of  the  muni- 
cipal (national)  law  of  the  forum  ;  tliere  being  in  this  case  no 
question  of  the  "  conflict  of  laws  "  or  of  the  comity  of  nations, 
although  the  relations  recognized  had  previously  existed  under 
another  jurisdiction.' 

§  280.  The  historical  evidence  of  the  principles  applicable, 
at  different  points  of  time  during  the  colonial  period,  to  the 
status  of  private  persons,  as  having  the  recognized  character  of 
a  laio  of  nations  or  universal  jurisprudence,  forming  part  of  the 
common  law  of  England,  has  been  set  forth  in  the  fourth  chap- 
ter. It  was  shown,  in  the  account  of  the  origin  of  municipal 
(national)  law  in  the  English  colonics,  given  in  the  fifth  and 
sixth  chapters,  that  the  slavery  of  Africans  and  Indians,  (at 
least  while  heathen  or  unbaptized,)  introduced  from  abroad, 
was  actually  supported,  in  the  law  of  the  empire  and  of  each 
colony,  by  the  application  of  the  rule  above  stated,^  operating 
first  as  private  international  law,  but  afterwards  taking  effect 
as  part  of  the  municipal  (internal)  law.'  It  has  been  shown 
that,  whatever  may  have  been  the  true  theorj'  of  the  location  of 
sovereign  power,  at  that  time,  over  persons  who  were  aliens  to 
the  empire,  the  juridical  action  of  the  imperial  and  colonial  au- 
thorities in  reference  to  such  aliens,  and  the  view  taken  by  each 
of  the  lata  of  nations,  as  determining  their  condition,  appear 
to  have  been  the  same  ;  so  far  as  those  sources  of  law  had  con- 
current jurisdiction  in  the  colonies,  and  together  controlled  the 
international  intercourse  of  those  colonies  with  foreign  countries. 
The  two  sources  of  law  equally  allowed  the  force  of  the  histori- 
cal laio  of  nations  as  then  known  ;  and  by  judicial  tribunals, 
acting  under  each  of  those  sources  of  law,  a  legal  distinction 

'  Ante,  §§  36,  113. 

'  UiJess  Georgia  was  an  exception.  '  Ante,  §§  197,  200. 


JUS  GENTIUM  IN  COMMON  LAW.  357 

was  recognized  to  exist  among  alien  persons,  founded  on  differ- 
ences of  race,  complexion  or  physical  structure,  and  religious 
belief  The  alien  of  white  or  European  race  and  Christian 
name  was  recognized  as  having,  by  the  law  of  nations  applied 
internationally,  the  status  of  a  legal  person  and  a  presumptive 
claim  to  the  enjoyment  of  those  individual  and  relative  rights, 
which,  under  the  English  common  law,  constituted  irrespec- 
tively of  political  rights,  the  free  condition  of  an  English-born 
inhabitant  ;^  subject  to  the  processes  of  remedial  justice  and 
police  laws,  including  the  powers  of  the  state  over  individuals 
in  reference  to  religious  beliefs  On  the  other  hand  it  was 
shown,  in  the  same  connection,  that  while  the  bondage  of  white 
indentured  servants  might  have  been  taken  for  the  result  of  a 
law  peculiar  to  the  colonies,  or  to  the  British  Empire^ — the 
chattel  slavery  of  Indian  captives  and  imported  Africans  was, 
throughout  a  long  period  subsequent  to  the  first  settlement  of 
the  colonies,  based  upon  a  distinct  recognition  of  the  law  of 
nations — principles  of  universal  jurisprudence  as  historically 
known  and  judicially  allowed  to  have  personal  extent  in  all  the 
colonies,  under  both  the  colonial  and  the  imperial  authority,  if 
not  in  England  also,  at  the  same  time. 

§  281.  To  whatever  extent  then  this  law  of  nations  or  uni- 
versal jurisprudence,  as  judicially  recognized  in  any  several  ju- 
risdiction of  the  empire,  sustained  at  any  period,  the  slavery  of 
Moors,  Africans  and  Indians,  regarded  as  aliens  to  the  empire, 
it  would  have  been  contemporaneously  receivable  in  the  same 
forum,  as  sustaining,  by  the  application  of  the  rule  above  stated, 
the  slave  condition  of  such  persons  appearing  therein  as  aliens 
to  such  several  jurisdiction,  after  they  had  become  domiciled  in 
Bome  other  jurisdiction  of  the  empire. 

And  it  may  also  be  said,  that  so  far  as  it  w^as  thus  recog- 
nized by  the  law  of  nations  of  that  time,  the  right  of  the  En- 
glish or  European  master  was  a  "  common  law  right "  and 
was  supported  as  such,  in  each  several  jurisdiction  of  the  em- 
pire, under  the  common  law  of  England,  having  for  him  a  per- 

'  Ante,  §  §  139,  140.  ^  Ante,  §  208.  '  Ante,  §§  209,  210. 


358  LIMITATION    OF    JUS    GENTIUM. 

sonal  and  national  extent  throughout  the  entire  national  do- 
main. ' 

§  282.  The  reasons  for  supposing  that  the  operation  of  the 
laio  of  nations,  in  sustaining  chattel  slavery  in  the  American 
colonies,  must  originally  have  been  limited  to  Moors,  Africans 
and  Indians,  while  heathen  and  un-baptized  only,  have  already 
been  explained.'^  And  the  colonial  statutes  have  been  noticed 
which  contain  an  apparent  lecognition  of  this  limitation  by  de- 
termining the  persons  who  should  be  Blaves,  notwithstanding 
conversion,  and  which  establish  rules  for  the  condition  of  the 
issue,  some  of  which  differ  from  that  of  the  civil  or  Roman  law.' 
It  has  also  been  shown  that  so  far  as  the  condition  of  Christian- 
ized negroes  and  Indians  was  supported  in  any  one  -colony  by 
the  judicial  interpretation  of  natural  reason,  (common  law,)  it 
was  still  distinguishable  as  the  result  of  the  law  of  that  particu- 
lar colony,  (jus  proprium.)^ 

§  283.  It  has  been  noticed  in  the  second  chapter,  that,  when 
regarded  as  the  condition  of  a  legal  person,  slavery  or  bondage 
is  a  condition  of  infinite  variety  in  respect  to  its  incidental  obli- 
gations and  their  correlative  rights  ;'  and  it  is  only  in  its  most 
absolute  form — that  approaching  most  nearly  to  chattel  slavery — 
that  it  can  be  a  condition  ascribed,  at  any  time,  to  the  law  of 
nations.^  It  has  been  shown  in  the  fourth  chapter,  how,  by  the 
attribution  of  legal  personality,  slavery  in  the  middle  ages  lost 

'  Ante,  §§  244,  245. 

^  Ante,  ^'^  170,  171,  189. 

=  Anie,  Laws  of  Maryland,  1663,  c.  30,  g  1.     Vir^rinia,  1682,  c.  1. 

*  Ante,  %  204. 

'  Ante,  §  4.5.  19  Howard's  R.,  p.  C24.  (Dred  Scott's  case,)  by  Mr.  Justice  Curtis. 
*'  The  status  of  slavery  is  not  neces-arily  always  attended  with  the  same  powers  on 
the  part  of  the  master.  The  master  is  subject  to  the  supreme  power  of  the  state,  whose 
will  controls  bis  action  towards  his  slave.  :ind  this  control  must  be  defined  and  re^nila- 
ted  by  the  municipal  law.  In  one  state,  as  at  one  period  of  the  Roman  law,  it  may 
put  the  life  of  the  slave  into  the  hand  of  the  master ;  others,  as  those  of  the  United 
States  which  tolerate  slavery,  may  treat  the  shivc  as  a  person,  when  the  master  takes 
his  life ;  while  in  others  the  law  may  recognize  a  right  of  the  slave  to  be  protected 
from  cruel  treatment  In  other  woi-ds.  the  stittus  of  slavery  embraces  every  condition 
from  that  in  which  the  slave  is  known  to  the  law  simply  as  a  chattel,  with  no  civil  rights, 
to  that  in  which  he  is  recognized  as  a  person  for  all  purposes,  save  the  compulsory 
power  of  directing  and  receiving  the  fruits  of  his  labor.  Which  of  these  conditions 
shall  attend  the  status  of  slavery,  must  depend  on  the  municipal  law  which  creates  and 
upholds  it." 

By  Mansfield,  in  Somerset's  case,  ante,  p.  191.  "  The  power  of  a  master  over  hii 
slaves  has  been  extremely  diflferent  in  different  countries." 

•  A7ite,  §  112. 


SLAVERY    OF    LEGAL    PERSONS, 

the  character  of  a  constitutio  juris  gentium,  and  became  a  hond- 
age  resting  on  the  jus  proprium  of  some  one  country. '  And  it 
may  be  assumed  that  no  condition  of  bondage,  other  than  chat- 
tel shivery  has  ever  acquired  recognition  in  universal  jurispru- 
dence— the  laio  of  nations,  in  that  sense. 

Now  it  may  be  questioned  whether  the  condition  of  slaverj 
which  was  maintained  in  the  colonies  was,  in  all  or  even  in  any, 
throughout  the  colonial  period,  that  absolute  chattel  condition 
under  which  African  negroes  had  been  known  as  personal  or 
movable  property,  in  the  customary  law  of  trade  and  commerce, 
the  law  merchant ;  and  whether  the  personality  of  slaves  was 
entirely  denied,  as  it  had  been  at  the  first  introduction  of  ne- 
groes. In  Virginia  they  had,  at  one  time,  been  declared  real 
estate  and  not  chattels.^  In  the  same  colony  and  in  Maryland 
they  had  been  classed  as  legal  persons  by  being  rated  for  the 
poll-tax,  which  was  also  imposed  on  free  white  persons.^  In 
some  of  the  northern  colonies,  their  condition  as  subjects  of  legal 
rights  and  obligations  was  little  distinguishable  from  that  of 
indentured  white  servants,  except  by  the  duration  of  the  ser- 
vice.'' 

Slavery  or  bondage  thus  modified,  was  the  result  of  the  jus 
proprium  of  the  colony,  and  could  not  receive  international  re- 
cognition in  other  parts  of  the  empire  as  the  sa/iie  slavery  which 
had  found  jdace  in  the  law  of  each  colony  as  a  constitutio  juris 
gentium — a  condition  recognized  by  universal  jurisprudence. 

§  284.  a.  Neither  (when  the  condition  of  slavery  had  thus 
changed  its  legal  character  in  the  place  of  domicil)  could  the 

*  Ante,  p.  159. 

'  Ante,  law  of  (October)  1705,  c.  23.  Very  probably  the  remark  of  the  Attorney- 
general,  in  Smith  v.  Brown  and  Cooper,  (ante,  p.  183,)  which  was  of  Easter  term,  1  706, 
had  reference  to  this  law  ;  and,  possibly,  the  distinction  which  Lord  Stowell,  in  2  IJagg. 
Ad.  E.  p.  114-,  proposed  to  recognize  in  such  international  cases  between  domestic 
slaves  anA  field  shives,  may  have  been  suggested  by  a  perusal  of  this  statute. 

'  Ante,  law  of  Ya.  1G57-8,  c.  4G;  Md.  1715,  c.  15,  Chinii  v  Rcspass,  1  Monroe's 
R.  25,  2G. 

*  2  Hildr.  419.  "The  harsh  slave  laws  in  force  in  the  more  southern  colonies 
were  unknown,  however,  in  New  England.  Slaves  were  regarded  [1750|  as  possess- 
ing the  same  legal  rights  as  apprentices,  and  masters,  for  abuse  of  their  authority, 
were  liable  to  indictment."  See  also  Winchendon  v.  Hatfield,  4  Mass.  K.  127,  aiUe, 
the  note  after  Laws  of  Mass.  in  ch.  vi.  Reeves'  Domestic  Relations,  340,  so  far  as  bis 
description  of  slavery  in  Connecticut  may  relate  to  the  colouial  era. 


360  ALTERATION  OF  JUS  GENTIUM. 

right  of  the  master,  in  respect  to  such  slave,  be  thereafter  main- 
tained in  other  jurisdictions  of  the  empire  as  a  right  resting  on 
the  common  law  of  England,  having,  as  to  such  master,  per- 
sonal extent  throughout  the  emiiire.' 

b.  Nor  could  the  master's  right  be  thereafter  recognized 
under  tlie  law  of  transit,  as  property,' 

§  285.  And  furthcrj  admitting  the  legal  character  of  slavery 
to  have  remained  unchanged  in  the  place  of  domicil,  and  that 
there  had  been  a  time,  during  the  planting  of  the  colonies,  when 
the  slave  condition  of  negroes  and  Indians  domiciled  in  some 
one  colony  should  properly  have  received  international  recog- 
nition in  every  other  part  of  the  empire,  as  being  the  eflect  of 
universal  jurisi^rudcnce — the  Icao  of  nations — yet  this  law  is,  in 
its  nature,  always  liable  to  change.^  It  may  have  changed 
during  the  colonial  period,  in  respect  to  the  slavery  of  Africans 
and  Indians,  as  it  had  before  changed  in  respect  to  the  personal 
condition  of  persons  of  other  races. ^  If  then  it  were  true  as 
matter  of  historical  fact  that  this  law  or  jurisprudence,  gathered 
from  the  laws  and  customs  of  those  nations  whose  juridical 
action  is  the  source  of  that  law,  had  so  changed,  no  tribunal  of 
any  one  nation,  nor  of  any  several  jurisdiction  of  the  British  em- 
pire, would  thereafter  have  had  the  same  judicial  reason  for 
supposing  the  slave-condition  of  an  alien  person  of  one  of  those 
races,  entering  into  its  jurisdiction,  to  be  recognized  by  the  su- 
preme civil  power,  wliose  will  it  should  apply  as  law  ;  the  reason, 
namely,  that  it  was  to  be  considered  the  result  of  a  law  having 
universal  recognition,  and  which  presumptively  constituted  a 
portion  of  the  municipal  (national)  law  of  the  forum. 

§  286.  The  question  whether  any  rule  or  doctrine  of  the  law 
of  nations,  universal  jurisprudence,  has,  during  any  period  of 
time,  continued  unaltered,  is  a  question  of  fact.''     The  doctrines 


'  Ante,  §§  243,  244. 

'  Ante,  §  272. 

'  Ante,  §  31). 

*  Ante,  §§  162,  163,  167. 

'  In  attributing  any  lesjal  rule  to  the  universal  jurisprudence,  the  jus  gentium  of 
any  particular  period,  it  will  be  perceived  that  no  change  of  that  law  can  be  simulta- 
neous among  those  nations  which  are  the   sources  of  that  law.     The  tribunal  of  any 


ALTERATION  OF  JUS  GENTIUM.  361 

of  that  law,  at  any  particular  time,  arc  judicially  known 
from  the  juridical  action  of  all  civilized  nations  ;  distinguishing 
such  principles  as  arc  received  in  all  foreign  jurisdictions,  or 
allowed  to  have  personal  extent  without  reference  to  territorial 
limits.  And  though  certain  legal  effecls  (rights  and  obliga- 
tions) should  be  found  to  exist  under  the  juridical  action  of 
many  or  all  civilized  nations,  yet,  if  under  that  action  they  are 
commonly  limited  to  specific  localities,  they  are  not  attributable 
to  universal  jurisprudence.'  Though  slavery  may,  by  some 
European  powers,  have  been  maintained  in  their  American  pos- 
sessions, yet,  if  its  incidental  rights  and  obligations  were  disal- 
lowed by  them  in  Europe,  it  was  then  judicially  known  as  a 
result  of  a  local  law,  jus  proprium,  only,  and  no  longer  ascribed 
to  the  jus  gentium,  universal  jurisprudence. 

Now,  leaving  out  of  view,  for  the  present,  the  juridical  action 
of  the  British  empire  or  of  any  s^jveral  political  part  of  it,  the 
authorities  already  cited  in  the  last  chapter  may  alone  prove  that 
the  law  of  nations,  in  respect  to  slavery,  had  changed  during 
the  colonial  period  ;  that  change  being  shown  by  the  judicial 
attribution,  in  European  states,  of  personal  liberty  to  Moors, 
negroes,  and  Indians,  without  regard  to  their  legal  condition  in 
a  foreign  domicil  ;  even,  in  some  instances,  where  that  domicil 
was  a  colony  under  the  same  political  dominion  as  the  forum  of 
jurisdiction. 

§  287.  Therefore,  even  if  the  authorities  referred  to  did  not, 
as  precedents  of  customary  private  international  law,''  establish 
a  rule  judicially  apjilicable  in  like  cases  by  the  tribunals  of  the 
several  jurisdictions  of  the  British  empire,  yet,  in  determining 

one  state,  when  seeking  the  doctrine  of  the  law  of  nations,  the  exposition  of  universal 
jurisprudence,  must  look  to  tlie  additive  verdict  of  many  national  authorities  in  their 
municipal  (internal)  and  international  law,  expressed  by  legislation  or  judicial  decision. 
And  though,  comparing  century  with  century,  it  may  he  unhesitatingly  declared  that 
the  doctrine  of  that  law  has  changed  on  s  )mc  particular  point,  yet  it  may  be  impos- 
sible to  indicate  the  exact  time  at  which  that  change  should  have  been  first  recognized. 
This  act  of  discrimination  is  in  its  liatnre  autonomic  on  the  piirt  of  the  tribunal. 

There  can  be  little  doubt  that  there  was  once  a  period  wlien  to  kill  or  sell  one's 
children  was  a  paternal  power  or  right  recognized  among  all  nations.  (Comp  Bynk- 
ershoek's  Essay  on  this  right  under  the  Roman  law.)  Abraham,  propo.sing  to  shiy  his 
son,  obeyed  a  command  higher  than  human  laws;  but  it  is  not  unlikely  that  his 
power  to  do  so  was  admitted  by  the  jurisprudence  of  those  among  whom  he  lived. 
'  Ante,  §§  1)9-102.  ■'  Ante,  §  258. 


362  ALTERATION  OF  JUS  GENTIUM. 

tlie  international  recognition  of  slavery,  they  were  evidence  of 
what  was  or  was  not  judicially  receivable  as  an  effect  of  uni- 
versal jurisprudence.  So  that,  supposing  slavery  to  have  re- 
mained the  same  chattel  condition  in  the  colonies,  under  their 
local  laws,  it  could  no  longer  be  said  to  be  a  constitution  of  the 
laiv  of  nations,  in  the  sense  of  a  legal  effect  known  by  its  actual 
prevalence  among  all  nations  or  all  enlightened  nations.  The 
condition  of  a  negro  who  had  been  a  slave  in  the  place  of  his 
domicil  could  not  then  be  judicially  supported  in  any  forum  of 
jurisdiction  ujmn  this  groimd,  after  this  change  in  universal  ju- 
risprudence had  actually  taken  place. 

§  288.  a.  Contemporaneously  with  the  occurrence  of  this 
change  in  the  law  of  nations,  the  master's  right  of  ownership 
ceased  to  be  supported  by  the  common  law  of  England,  embrac- 
ing the  laio  of  nations,  and  having  as  to  him  a  personal  extent 
throughout  the  empire.' 

h.  The  same  change  would  in  like  manner,  whenever  it  oc- 
curred, have  limited  the  effect  of  the  international  rule  of  transit 
as  a  protection  of  the  right  of  masters  in  slaves  whom  they 
should,  though  for  a  temporary  purpose,  bring  with  them  within 
the  limits  of  any  part  of  the  empire  wherein  slavery  was  not 
allowed  by  the  internal  law.' 

§  289.  In  a  jurisdiction  wherein  negro  slavery  had  been  intro- 
duced under  the  old  laiu  of  nations  and  wherein  it  has  continued 
to  have  essentially  the  same  chattel  characteristics,  there,  the 
condition  might  have,  or  in  the  jurisprudence  of  that  state  it  might 
have  the  same  legal  character  as  before,  and  be  still  recognized 
to  be  one  of  those  effects  of  law  which  are  received  as  deductions 
from  a  j^riori  j)rinciplcs  and  taken  to  accord  with  natural  reason, 
whether  the  right  and  oblifjation  in  which  such  effect  consists  are 
ascribed  to  temporary  or  to  domiciled  subjects.  And  as  between 
two  jurisdictions,  in  each  of  which  slavery  retained  its  essentially 
chattel  character,  it  may  be  that,  as  to  them,  or  in  the  judicial 
apprehension  of  their  several  courts,  it  should  still  be  ascribed 
to  universal  jurisprudence  though  it  should  have  been  abandoned 

'  Ante,  §§  244,  245.  *  Ante,  §  272. 


REFERENCE    TO    INTENTION    OF    THE    STATE.  363 

and  forbidden  by  all  other  nations.  In  such  jurisdictions  the 
tribunals  of  either  should  have  recognized  the  slave  condition  of 
an  African  introduced  from  the  other,  or  from  elsewhere,  in  the 
same  manner  as  they  recognized  the  local  slavery.  There  would 
be,  as  between  any  two  such  jurisdictions,  no  conflict  of  laws 
and  no  question  of  the  comity  of  nations. 

§  290.  But  further — the  judicial  allowance  of  certain  legal 
effects  as  created  by  a  rule  of  universal  jurisprudence  is  based 
upon  the  assumption  that  universal  jurisprudence — the  histori- 
cal laio  of  nations — is  an  exposition  of  natural  reason  adopted  by 
the  sovereign  source  of  law  in  the  forum.'  Yet  it  is  at  the  same 
time  fully  understood  that  the  state,  or  the  possessor  of  sovereign 
political  power,  is,  in  its  estimate  of  the  requirements  of  natural 
reason,  entirely  independent  of  the  juridical  action  of  similar 
states  or  persons.  And  it  is  always  the  duty  of  the  tribunal 
rather  to  look  for  a  part  of  the  national  common  law  as  being 
the  state's  conception  of  a  universal  jurisprudence,  than  to  re- 
ceive it  as  gathered  from  the  laws  of  foreign  states.^  The  con- 
juncture is  barely  supposable  that,  at  some  given  point  of  time, 
there  should  not  be  any  domiciled  inhabitants  sustaining  a 
certain  relation  attributable  to  the  law  of  nations  as  then  judi- 
cially cognizable  :  or,  in  other  words,  that  a  received  principle 
of  the  Jaio  of  nations  should  not  be  actually  operative  in  the 
internal  law.  The  fact  that,  at  a  certain  time,  there  were  no 
slaves  among  the  doniiciled  inhabitants,  might  be  accidental. 
Slaves  might  never  have  been  imported  ;  or  all  slaves  may  have 
been  exported,  or  have  been  manumitted  by  their  owners,  or 
have  deceased.  It  might  even  be  that  slavery  had,  as  the  con- 
dition of  a  domiciled  inhabitant,  been  declared  unlawful  or  been 
prohibited.  And  yet  it  might  be  that  the  laio  of  nations  sus- 
taining slavery  should  still  be  judicially  received  as  part  of  the 
municipal  (national)  law,  to  maintain  the  slavery  of  persons 
whether  coming  from  other  jurisdictions,  to  reside,  or  being 
transitory  subjects.^ 

But  if  any  effect  attributable  to  a  rule  of  the  laiu  of  nations 

'  Ante,  §  94.  *  Ante,  §  173.  *  Ante,  §  95. 


3G4  COMMON    LAW    CRITERION. 

lias  been  repudiated  in  the  internal  law  of  the  forum  as  contrary 
to  natural  reason,  the  whole  basis  for  the  judicial  recognition  of 
that  rule  in  the  private  international  law  of  the  forum  would  be 
destroyed.  And  this  would  be  the  case  whether  the  rejection  of 
such  effect,  on  tliis  grotcncf,  had  been  made  in  a  legislative  or  a 
judicial  exposition  of  positive  law. 

§  291.  Tlie  English  cases  cited  in  the  fourth  chapter  show 
that  at  a  period  shortly  before  the  war  of  revolution  no  domiciled 
inhabitant  of  the  British  islands  could  be  held  therein  as  a  slave 
or  in  any  condition  of  involuntary  servitude  not  based  upon  local 
customary  and  feudal  law.  It  appears  too  that  a  similar  ju- 
dicial declaration  of  law  had  been  made  in  Massachusetts  about 
the  same  period.  This  juridical  action  would  then,  in  these  ju- 
risdictions, have  prevented  any  subsequent  judicial  recognition 
of  the  slavery  of  an  ahen  on  the  ground  of  its  being  supported  in 
the  private  international  law  of  the  forum  by  the  historical  law 
of  nations  ;  even  if  that  law,  as  learned  from  the  action  of  for- 
eign states,  had  remained  unchanged. 

§  292.  Still,  so  long  as  the  laio  of  nations,  or  universal  juris- 
pi-udence,  remained  the  same  in  judicial  recognilion,  and  had 
not  been  rejnidiated  in  tJ/e  common  laiu  cf  England,  the  right 
of  the  owner,  being  a  British  subject,  in  a  negro  chattel  slave, 
would  still  have  continued  in  any  one  jurisdiction  of  the  Empire, 
even  although  in  that  jurisdiction  slavery  had  been  repudiated 
in  the  local  or  interned  law,  (t.  e.  the  law  applying  to  domiciled 
persons,)  as  contrary  to  natural  reason,  in  the  manner  supposed 
in  the  last  section.  Thus  in  Massachusetts,  at  the  time  spoken 
of,  it  might  have  been  supported  by  the  "  common  law  of  Eng- 
land ;"  thus  having  a  g-wast-international  operation,  although 
the  private  international  law  of  Massachusetts  (being  part  of 
that  law  which  rested  for  its  authority  exclusively  on  the  juridi- 
cal power  of  that  colony)  should  not  have  sustained  it. 

But  since  the  operation  of  the  laio  of  nations,  in  this  in- 
stance, depended  altogether  upon  its  being  contemporaneously 
received  in  the  common  law  of  England,  there  was  a  point  of 
time,  towards  the  close  of  the  colonial  period,  when  slavery  could 
not  have  been  supported  in  other  parts  of  the  empire  on  this 


SLAVERY,    WHEN    NOT    RECOGNIZED.  365 

ground  ;  not  even  if  the  juridical  action  of  otlicr  nations  had  not 
modified  the  old  hiw  of  slavery  once  attributed  to  universal 
jurisprudence. 

§  293.  It  appears  then,  that — 

1st.  If  the  status  of  the  alien  in  the  place  of  his  domicil  was 
not  that  chattel  condition,  which  had  been  the  only  condition  of 
bondage  recognized  by  universal  jurisprudence — the  law  of  na- 
tions : — Or, 

2d.  If  this  law,  as  known  in  the  juridical  action  of  civilized 
states,  had  changed  : — Or, 

3d.  If,  as  may  have  been  the  case  in  the  British  islands  and 
Massachusetts,  slavery  was  disallowed  in  the  internal  law  as 
contrary  to  natural  nason  ; 

—  the  involuntary  servitude  of  negroes  introduced  from 
other  jurisdictions  of  the  empire  or  from  abroad  could  not  have 
been  judicially  recognized  under  the  rule  of  private  international 
law  whose  operation  has  herein  been  considered — the  rule  which 
requires  the  judicial  recognition  of  rights  and  duties  derived  from 
a  rule  having  the  character  of  universal  jurisprudence.  In  no 
one  of  these  three  cases  could  the  slavery  of  the  alien  be  consid- 
ered a  condition  presumptively  recognized  by  the  supreme  power 
of  the  forum  as  accordant  with  natural  reason,  or  the  result  of  a 
law  having  universal  extent  and  received  into  the  municipal 
(national)  law  {i.  c.  both  the  internal  and  the  international  pri- 
vate law)  of  the  forum.  ^ 

4th.  And  when,  on  the  contingency  of  one  or  more  of  these 
cases,  the  rights  and  obligations  incident  to  the  relation  of  mas- 
ter and  slave  should  have  ceased  to  be  internationally  cogniza- 
ble under  an  application  of  this  rule  ;  or,  certainly,  whenever, 
in  England,  those  rights  and  obligations  were  not  maintainable 
under  this  rule  ;  the  right  of  the  owner  would  cease  to  be  cog- 
nizable as  a  common  law  right,  supported  by  the  law  of  national 
extent. 

5th.  Nor,  on  the  same  contingency,  would  those  rights  and 
obligations  be  any  longer  maintainable  by  the  international  rule 
of  transit.^ 

>^7i<e,  §279.  Mn/e,  §272. 


36G  REFERENCE    TO    RULE    OF    COMITY. 

§  294.  Supposing  then  that,  by  the  occurrence  of  these  con- 
tingencies, this  was  the  doctrine  applicable  in  some  one  jurisdic- 
tion of  the  empire,  and  also  that  the  question  had  arisen  fur  the 
first  time,  or  that  there  was  no  local  precedent  or  customary 
law  directly  applicable  to  such  cases,  the  only  international  rule 
which  could  maintain  the  condition  of  the  alien  negro  or  Indian, 
who  should  be  claimed  as  a  slave  under  the  law  of  his  domicil, 
would  be  that  part  of  the  customary  law  which  is  called  comity. 

This  rule,  as  has  been  argued  in  the  second  chapter,  would 
support  the  condition  of  an  alien  existing  under  the  law  of  his 
domicil  if  not  inconsistent  with  principles  in  the  local  law  ju- 
dicially taken  to  have  universal  personal  extent. ' 

§  295.  In  attempting,  in  the  second  chapter,  to  state  a 
general  rule  for  distinguishing  what  principles  in  the  local  or 
territorial  law  of  any  one  jurisdiction  may  be  taken  by  its  tribu- 
nals to  have  universal  personal  extent,  it  was  supposed  that 
such  extent  might  be  known  from,  either, 

1.  An  act  of  positive  legislation,  declaring  such  principle  to 
have  universal  personal  application  so  far  as  the  dominion  and 
jurisdiction  of  the  legislating  sovereign  may  extend,  or, 

2.  From  the  judicial  attribution,  to  natural  persons  domiciled 
within  the  supposed  jurisdiction,  of  rights  or  duties  (resulting 
from  such  principle)  as  being  antecedent  to  rules  of  action  ;  or, 
to  change  the  phraseology,  as  resulting  from  laAv  in  the  second- 
ary sense  of  the  term — a  condition  of  existence — or  from  the 
natural  law,  in  the  only  sense  in  which  it  can,  in  jurisprudence, 
be  distinguished  from  j)0sitive  law.' 

§  296.  From  the  view  given  in  the  preceding  chapters  of  the 
establishment  of  municipal  law  in  the  colonies,  it  would  appear 
that  neither  these  rights,  which  were  known  as  common  law 
liberties,  nor  any  rights  inconsistent  with  a  condition  of  bondage 
or  even  of  chattel  slavery,  were  ever  in  any  colony  attributed  to 
all  natural  persons  by  any  act  of  positive  legislation.  And  it 
may  be  assumed  that  there  was  no  English  statute  enacted  in 
and  for  the  British  isles,  during  the  colonial  period,  which  altered 

Mnie,  §§  88,  no.  Mnte,  §§  102,  114-116. 


LAW    OF    UNIVERSAL    EXTENT.  367 

the  extent  of  the  former  customary  or  common  law  of  status  or 
condition. 

§  297.  And  if,  in  some  one  several  jurisdiction  of  the  empire, 
all  domiciled  inhabitants  had  hecome  freemen  by  a  judicial  de- 
claration that  all  stick  were  entitled  to  individual  rights,  as 
known  to  the  common  law — the  liberty  of  free  English  subjects — 
yet  it  might  have  been  a  usurpation  of  juridical  power,  in  a  tri- 
bunal, to  have  made  this  law  of  personal  liberty  so  universal  in 
extent  as  to  limit  the  rule  of  comity  in  these  cases. 

A  former  international  recognition  of  any  particular  relation 
between  persons,  by  the  tribunals  of  the  forum,  becomes  for 
later  tribunals  a  precedent  of  private  international  law.  In  the 
colonies  wherein  domiciled  negroes  were  held  in  slaveiy  tSe  in- 
ternational recognition  of  the  condition  of  alien  slaves,  after  the 
time  when  it  is  supposed  the  laiiJ  of  nations — universal  jurispru- 
dence— would  no  longer  have  been  applicable,'  may  in  fact  be 
ascribed  to  the  customary  law  of  those  jurisdictions  as  much  as 
to  comity  ;  which  is  indeed  itself  part  of  the  customary  law, 
and  which,  it  is  here  supposed,  might  have  caused  the  interna- 
tional recognition  of  slavery,  though  no  precedents  of  the  same 
forum,  occurring  in  like  circumstances,  could  be  found. 

§  298.  If  then,  in  the  British  islands,  at  the  date  of  Somer- 
set's case,  and  in  Massachusetts,  at  some  time  before  the  Revo- 
lution, negroes  could  not  be  held  in  servitude  under  the  local  or 
internal  law  ;  or  if,  changing  the  form  of  expression,  no  domi- 
ciled negro  or  Indian  could  have  been  there  retained  in  such 
servitude,  it  might  perhaps  still  have  been  claimed  that  the 
former  international  practice  would  support  in  those  jurisdic- 
tions a  continued  international  recognition  of  the  slavery  (chat- 
tel or  personal)  of  negroes  domiciled  elsewhere  ;  at  least  until 
positive  legislation  had  either  altered  that  practice  or  had  ex- 
pressly given  a  universal  personal  extent  to  the  law  of  free 
condition. 

Supposing  then  that,  in  the  other  colonies,  the  claim  of  an 
alien  master  would  have  been  supported  by  the  rule  of  comity 

'  Ante,  §§  286,  289. 


368  QUESTION    IN    MASSACHUSETTS. 

(to  say  nothing  of  other  customary  law)  the  question  arising  on 
such  chaim  may  be  examined  for  the  colony  of  Massachusetts 
and  the  British  islands. 

§  299.  It  has  been  observed  already  in  this  chapter,  that,  in 
some  of  the  colonies,  negroes  and  Indians,  though  held  in  a  con- 
dition "which,  for  want  of  a  more  accurate  term,  may  bo  called 
ahsoiute  slavery,  may  still,  at  least  if  converted  or  baptized,  have 
been  regarded  as  legal  persons  and  not  chattels.  From  the 
phraseology  of  legislative  acts  in  the  New  England  colonies, 
which  had  something  of  the  nature  of  bills  of  rights,  and  from 
the  judicial  application  of  customary  law  therein,  so  far  as  it  can 
bo  known,  it  may  be  inferred  that,  in  those  colonies,  the  posses- 
sion tf  legal  personality  was  ascribed  to  law  in  the  secondary 
sense — a  condition  of  things — and  was  held  to  belong  to  all  na- 
tural persons  as  an  incident  of  humanity.  Though,  while  heathen 
negroes  continued  to  be  introduced  from  abroad  as  chattels  by 
the  law  of  nations,  the  attribution  of  personality  was  universal 
only  in  respect  to  nominally  Christian  persons.  The  same  may 
be  taken  to  have  been  the  law  of  the  British  islands  shortly  be- 
fore the  date  of  Somerset's  case,  even  if  it  is  admitted  that  ne- 
groes nominally  Christian  could  there  have  been  lawfully  retained 
in  involuntary  servitude  at  that  time.  ^ 

On  the  principle  herein  assumed  to  be  applicable,  this  attri- 
bution of  legal  personality  in  these  jurisdictions,  supposing  it  to 
have  been  thus  made  universal,  should  have  limited  that  recog- 
nition, by  comity,  of  the  condition,  under  the  law  of  their 
domicil,  of  negroes  entering  from  other  countries  or  parts  of  the 
empire  ;  if  in  such  domicil  it  had  been  chattel  slavery. 

§  300.  It  has  been  shown  that  in  one  important  respect 
slavery  had  changed  its  character  in  every  colony  before  the 
Kevolution.  That  is  to  say — the  slavery  of  negroes,  at  least  of 
those  born  on  the  soil  and  nominally  Christian,  lost  itp  founda- 
tion in  universal  jurisprudence — the  law  of  nations — and  became 
an  effect  of  local  law — ^jus  proprium.''  But  it  is  at  the  same 
time  true  that  the  condition  of  slavery,  as  characterized  by  cer- 

Mnte,  §  188.  »Jn/e,  §215. 


AND    IN    THE    BRITISH    ISLANDS.  369 

tain  obligations  of  the  slave  and  the  correlative  rights  of  the 
owner,  did  not  essentially  vary,  whether  the  status  thus  resting 
on  local  law  was  legally  distinguishable  as  chattel  slavery  or  as 
the  condition  of  a  legal  person.'  In  fact,  even  though  in  some 
several  jurisdiction  of  the  empire  personality  should  have  been 
thus  universally  attributed,  yet  while  domiciled  negroes  could, 
notwithstanding,  be  held  there  in  servitude,  as  persons,  the 
tribunals  might  reasonably  suppose  the  condition  of  alien  ne- 
groes, under  the  contemporary  law  of  their  domicil,  to  be  equally 
the  condition  of  a  legal  person.  So  that  its  recognition  in  that 
forum  under  the  rule  of  comity,  would  not  be  less  consistent  with 
a  universal  attribution  of  personality  than  was  the  local  slavery. 

Therefore,  although,  strictly  speaking,  the  attribution  of 
personality  involves  the  attribution  of  some  individual  rights,  it 
may  be  assumed  here  that  the  attribution  of  personal  liberty, 
whose  universality  should  have  prevented  the  judicial  recogni- 
tion, by  comity,  of  a  status  of  bondage  created  under  a  foreign 
law,  should  have  been  one  more  absolute  than  that  involved  in 
the  attribution  of  legal  personality  only. 

§  30i.  When  it  is  intimated  that  a  condition  of  involuntary 
servitude  may  be  inconsistent  with  the  attribution  of  individual 
rights,  under  a  principle  having  universal  extent  in  some  one 
forum  of  jurisdiction,  it  is  at  the  same  time  confessed  that,  as 
human  society  is  at  present  constituted,  no  state  or  country  can 
be  supposed  to  exist  wherein  personal  freedom  is  a  right  actually 
enjoyed  by  every  individual  under  the  internal  law. 

Yet  it  is  possible  that  the  right  should  be  attributed  by  that 
law  to  every  individual,  except  as  limited  by  certain  legal  rela- 
tions ;  such  as  relations  essential  to  the  existence  of  families, 
and  by  the  effects  of  remedial  and  punitive  law  ;  and  that 
other  limitations  of  that  right  under  the  local  law  should  have 
especial  reference  to  local  peculiarities.  In  a  state  wherein  this 
should  be  the  case,  individual  rights  might  be  attributed  to  aU 
to  such  a  degree  as  to  preclude  the  judicial  recognition  of  con- 
ditions or  status  inconsistent  with  the  exercise  of  those  rights. 

'  13  Conn.  R.  59.     Jackson  v.  Bullock,  p.  59. 

24 


370  QUESTION    IN    MASSACHUSETTS, 

^§  302,  If  then  the  courts  in  Massachusetts  or  in  the  British 
islands  could  have  held  the  individual  rights  attributed  to  Eng- 
lishmen to  be  incidents  of  a  relation  existing  independently  of 
rules  of  action  enforced  by  positive  law,  and  that  those  rights 
were  actually  incident  to  the  condition  of  all  domiciled  persons, 
except  as  limited  by  the  family  rights  and  duties,  punitive  and 
remedial  laws,  or  in  relations  whose  jural  character  depended 
on  local  circumstances,  under  special  exceptions  by  statute  or 
customary  law,  they  might  (under  the  second  index  of  univer- 
sality, ante,  §  295,)  have  considered  liberty  to  be  so  universally 
attributed,  by  the  sovereign  power  whose  will  they  were  to  apply 
as  law,  as  to  prevent  the  international  allowance  of  slavery 
under  the  rule  of  comity. 

§  303.  In  Massachusetts  this  could  hardly  have  been  main- 
tained if  the  refusal  of  the  provincial  governors  to  co-operate 
with  the  local  legislature  in  prohibiting  the  importation  of 
African  slaves,  was  a  sufficient  proof  that  such  importation  was 
lawful.  That  of  itself  might  have  been  inconsistent  with  a 
universal  attribution  of  liberty,  whatever  may  have  been  the 
condition  of  those  so  imported  after  they  had  become  domiciled 
or  had  been  purchased  by  residents.  In  the  cases  wherein 
domiciled  negroes  had  been  declared  freemen,  the  judgment  of 
the  courts,  according  to  Dr.  Belknap's  account,  had  been  only 
that  negroes  born  in  the  colony,  or  only  perhaps  that  domiciled 
negroes  were  entitled  by  the  charters  to  the  rights  of  the  English 
colonists.'  It  might  perhaps,  however,  have  been  held  that  per- 
sonal liberty  was  to  be  attributed  to  all  baptized  negroes  and 
Indians. 

§  304.  Of  the  many  slaves  actually  held  in  England,  at  the 
time  of  Somerset's  case,  a  large  proportion  may  be  supposed  to 
have  been  imported  from  Africa,  and  to  have  had  no  other 
domicil  than  England.  The  importation  of  slaves  into  the 
British  islands  had  no  implied  sanction  in  the  failure  of  an  at- 
tempt to  pass  a  statute  against  it,'*  as  in  Massachusetts  ;  but, 

'  Ante,  p.  264r,  note. 
*  A  bill  for  restricting  the  slave  trade  was  first  brought  into  the  House  of  Commons 
in  1788.     The  final  act  for  its  abolition  was  in  1807.     Walsh's  Appeal,  pp.  344-350. 


AND    IN    THE    BRITISH    ISLANDS.  371 

as  has  been  shown  in  the  fourth  chapter,  the  same  reasoning 
which  supported  the  importation  of  slaves  into  an  American 
colony  would,  apparently,  have  justified  their  importation  into 
England  :  unless  the  law  which,  in  England,  determined  the 
condition  of  the  native  Briton  extended  to  all  persons  within 
the  realm  of  England.  But  Lord  Mansfield  must  be  taken  to 
have  based  his  decision  on  the  universal  personal  extent,  at  the 
time,  of  this  law  of  condition  ;  and  to  have  held  that  any  ex- 
ceptions under  the  territorial  law,  such  as  villenage  and  the 
bond-slavery  of  colliers  and  salters  in  Scotland,  then  existing,' 
were  jural  or  rightful  only  in  reference  to  peculiar  local  circum- 
stances. Such  a  meaning,  it  would  seem,  will  best  vindicate 
the  juridical  fitness  of  his  language  when  he  said,  "  The  state 
of  slavery  is  of  such  a  nature  that  it  is  incapable  of  being  in- 
troduced on  any  reasons  moral  or  political  ;  but  only  by  positive 
law,  which  preserves  its  force  long  after  the  reasons,  occasion, 
and  time  itself,  from  whence  it  was  created,  is  erased  from  mem- 
ory. It  is  so  odious  that  nothing  can  be  suffered  to  support  it 
but  positive  law." 

§  305.  It  has  already  been  shown  that,  in  this  distinction  of 
certain  principles  contained  in  the  municipal  (national)  law  of 
a  country  as  having  universal  personal  extent,  a  tribunal  dis- 
tinguishes some  rules  as  jural  or  rightful  only  in  and  for  a  cer- 
tain territorial  jurisdiction,  and  others  as  jural  because  conso- 
nant with  the  conditions  of  man's  existence  in  society  ;  thus 
recognizing  a  natural  law  in  the  only  sense  in  which  it  is  known 
in  jurisprudence  or  the  science  of  positive  law,'*  The  legislator 
may  determine  this  by  exercise  of  autonomic  power.  A  tribunal, 
in  making  this  distinction,  can  only  refer  (in  the  want  of  local 
precedents  or  legislation  determining  the  extent  of  law)  to  the 
juridical  action  of  foreign  states  :  especially  in  their  application 
of  international  law  ;  through  which  it  is  ascertained  what 
principles  of  its  own  (national,  civil,)  law  each  state  holds  to 
be  natural  and  universal,  and  what  others  peculiar  (proprium) 
to  itself  or  its  own  peculiar  circumstances.     And  by  this  refer- 

'  Ante,  p.  332,  note.  Ante,  §§  87,  97,  100. 


c>72  somerset's  case  justified. 

ence  the  science  of  universal  jurisprudence  (jus  gentium)  be- 
comes manifested. 

§  306.  It  being  then  admitted  that  in  England,  at  this  time, 
no  right  similar  to  that  claimed  by  the  master  in  Somerset's 
case  could  there  be  exercised  in  reference  to  a  domiciled  inhab- 
itant, or  that  no  such  obligations  as  those  incident  to  slavery  in 
the  colonies  could  be  enforced  in  England  by  the  territorial  or 
local  law  against  a  domiciled  inhabitant,  the  courts  there  could 
have  referred  to  the  international  practice  of  foreign  countries 
in  similar  circumstances  ;  that  is,  countries  wherein  such  rights 
and  obligations  could  not  be  enforced  as  between  domiciled  in- 
habitants or  under  the  internal  law.  They  would  have  regarded 
such  practice  not  only  as  the  evidence  of  a  customaiy  rule  of  in- 
ternational law  supposed  to  be  received  into  the  law  of  the 
land,^  and  also  as  showing  whether  universal  jurisprudence — 
the  law  of  nations — did  or  did  not  sustain  such  rights  and  obli- 
gations,'^  but  also  as  showing  whether  the  general  law  of  free 
condition,  having  a  territorial  extent  in  the  forum  of  jurisdiction 
(England)  was  to  be  taken  to  be  jural  with  reference  to  domi- 
ciled subjects  only,  or  to  have  universal  personal  extent,  with 
only  such  exceptions  as  were  to  be  considered  necessary  in  refer- 
ence to  local  circumstances  ;  as  shown  by  statute  or  by  particu- 
lar customs, 

§  307.  Now  the  European  continental  authorities  already 
cited  may,  regarded  in  this  light,  be  taken  to  show  that — w^hen 
in  any  country  that  condition  of  bondage  which  has  herein  been 
called  absolute  or  chattel  slavery,  has  become  unknown  to  the 
territorial  or  internal  law,  or  when  it  cannot  exist  as  the  condi- 
tion of  a  domiciled  inhabitant,  all  limitations  to  the  enjoyment 
of  individual  rights  under  that  law,  (if  not  incidents  of  the 
family  state  or  effects  of  punitory  laws,)  are  to  be  considered  jural 
only  in  reference  to  local  and  exceptional  circumstances  sanc- 
tioned by  statute  or  particular  local  customs,  and  that  the  ordi- 
nary or  general  law,'  attributing  individual  rights  to  the  domi- 
ciled inhabitants,  is  one  which  is  to  be  taken  (with  these  excep- 


»  Ante,  §§  122,  255.  *  Ante,  §  281.  *  Ante,  p.  131,  n. 


2. 


somerset's  case  justified.  373 

tions)  to  have  universal  personal  extent,  or  to  apply  to  all  nat- 
ural persons  within  the  territorial  domain.  So  that  a  tribunal 
cannot  look  upon  the  rights  and  obligations  of  aliens,  existing 
under  a  foreign  law,  if  inconsistent  with  the  possession  of  those 
rights,  as  equally  recognized  exceptions  to  that  general  law.  And 
that  therefore,  in  such  forum,  the  rule  of  comity  cannot  take 
eflfect  in  sustaining  the  involuntary  servitude  of  an  alien  as  in- 
cident to  a  status  existent  by  the  law  of  his  domicil. 

These  authorities  are  earlier  than  Somerset's  case,  and  the 
application  of  the  doctrine  above  stated  would  have  prevented 
the  judicial  recognition  of  his  slave  condition  under  the  rule  of 
comity. 

§  308.  It  is  thus  supposed  that  Lord  Mansfield's  decision  in 
the  case  of  Somerset  was  justified  by  the  system  of  private  in- 
ternational law  derived  from  the  customary  jurisprudence  of  all 
nations,  applied  in  a  case  of  the  so  called  "  conflict  of  laws  "  in 
three  different  forms  : 

1.  The  rule  derived  from  the  international  practice  of  nations 
in  like  cases  disallowed  the  master's  claim. 

2.  The  laio  of  nations — universal  jurisprudence,  as  learned 
from  the  international  practice  of  nations,  no  longer  supported 
the  slave  condition  of  the  negro. 

3.  The  juridical  action  of  foreign  nations,  as  indicating  what 
principles  of  the  law  of  England  were  to  be  taken  to  have  uni- 
versal personal  extent,  required  a  universal  extent  for  the  law  of 
free  condition  applying  to  the  domiciled  inhabitants,  and  there- 
fore the  rights  of  the  owner  and  the  obligations  of  the  slave 
were  not  supported  by  comity.^ 

'  Mr.  Justice  Campbell,  in  Dred  Scott's  case,  19  Howard,  495,  says :  "  It  will  be 
conceded,  that  in  countries  where  no  law  or  regulation  prevails,  opposed  to  the  exist- 
ence and  consequences  of  slavery,  persons  who  are  born  in  that  condition  in  a  foreign 
state  would  not  be  liberated  by  the  accident  of  their  introgression."  If  it  is  meant 
that  the  liberation  will  not  ensue  where  there  is  no  statutory  prohibition  of  slavery, 
the  concession  here  assumed  seems  to  be  very  much  out  of  use.  It  was  not  required 
by  the  rules  of  international  private  law  a  century  ago,  and  has  certainly  not  been 
more  favored  since  that  period.  The  "  accident  of  introgression  "  liberated  persons  bom 
in  slavery  in  foreign  states  wlien  th«  lato  of  nations — universal  jurisprudence — had 
changed.  Mr.  Justice  Campbell  adds  :  ''  The  relation  of  domestic  slavery  is  recognized 
in  the  law  of  nations,  and  the  interference  of  the  authorities  of  one  state  with  the  rights 
of  a  master  belonging  to  another,  without  a  valid  cause,  is  a  violation  of  that  law. 
(Wheat.  Law  of  Nat.,  724  ;  5  Stats,  at  Large,  GOl ;  Calli.  Sp.  378  ;  Reports  of  the  Com. 


374  Mansfield's  inconsistency. 

§  309.  According  to  the  view  of  the  public  law  of  the  Brit- 
ish empire,  during  the  colonial  period,  which  has  been  given  in 
the  preceding  chapters,  the  slavery  of  a  negro  inhabitant  in  any 
one  of  the  colonies  rested  on  a  portion  of  supreme  or  sovereign 
power  held  severally  by  the  local  government.  The  several 
jurisdictions  of  the  British  empire  were  like  independent  na- 
tional jurisdictions,  in  their  international  recognition  of  the 
status  of  negro  slaves.  This  was  the  colonial  theory  of  public 
law,  which  was  confirmed  or  established  by  the  revolution. 

It  must  be  noticed  that  the  applicability  of  the  argument 
here  detailed  as  determining  Somerset's  case,  rests  wholly  upon 
this  doctrine.  But  on  the  theory  of  public  law,  determining 
the  location  of  sovereign  power  over  persons  and  things  in  the 
American  colonies,  which  was  held  by  Lord  Mansfield,  (as  ap- 
pears in  this  decision,  and  is  known  from  other  sources,)'  there 
was  a  gross  inconsistency  in  his  refusing,  as  a  judge,  to  give  a 
Q'wosi-international  support  in  England  to  the  condition  of  sla- 
very, which  he  acknowledged  to  be  la\N^ul  in  the  colony.  For, 
even  admitting  that  that  condition  did  not,  at  that  time,  re- 
ceive any  support  from  the  law  of  nations,  i.  e.,  universal  juris- 
prudence. Lord  Mansfield  held,  not  only  that  Somerset  was 
legally  a  slave  in  the  colony,  but  that  the  law  by  which  he  was 
held  as  a  slave  rested  upon  the  same  supreme  source  of  law 
upon  which  the  territorial  law  of  England  depended  for  its 
coercive  power  in  England,  that  is,  parliament,  or  the  crown 
and  parliament.  Of  two  laws,  equally  dependent  on  the  juridi- 
cal will  of  the  sovereign  in  whose  name  he  exercised  the  judicial 
functions,  Lord  Mansfield  could  not  have  taken  one — the  Eng- 
lish (local)  law  of  status — to  have  that  universality  or  universal 


TT.  S.  and  G.,  187,  238,  241.")  The  law  of  nations, — universal  jnrisprudence, — ceased 
to  support  slavery  long  before  Somerset's  case ;  and  if  Judge  Campbell  means 
here  public  international  lav,  a  law  binding  on  nationa,  the  assertion  is  simply  ridicu- 
lous :  unless  the  slaveholding  States  of  this  Union  can  alrme  create  a  rule  in  that  law. 
For,  from  the  middle  ages  to  the  present  day,  every  European  state  has  claimed  and 
exercised  the  power  to  recognize  or  not  to  recognize  the  bond  status  of  strangers. 
And  wh- n  nations  have  not  allowed  their  own  subjects  to  hold  negroes  in  slavery,  they 
have,  almost  without  exception,  rejected  the  claims  of  foreign  owners  voluntarily  en- 
tering their  dominions.     Their  riff/it  to  do  so  has  never  been  questioned. 

'  See  his  speech  in  the  Lords,  Feb.  7,  1775,  in  2  Campbell's  Lives  of  Ch.  Justices, 
p.  496. 


MANSFIELD'S   INCONSISTENCY.  375 

personal  extent  which  would  prevent  the  judicial  recognition, 
(under  the  rule  of  comity  as  explained  in  the  second  chapter,) 
of  a  rif^ht  and  obligation  sanctioned  by  the  other. 

§  310.  In  other  words,  since  Lord  Mansfield  held  that  the 
sovereign  whose  juridical  will  had,  in  Virginia,  (as  by  a  jural  rule, 
or  rule  of  right,)  made  Somerset  a  slave,  was  identical  with  the 
sovereign  whose  juridical  will  (in  a  jural  rule,  or  rule  of  right,) 
he  was  to  enforce  at  Westminster,  he  could  not  (if  Somerset 
had  been  a  chattel  in  Virginia)  say  that  the  law  of  England, 
in  attributing  to  Englishmen  legal  capacity  for  rights  and  du- 
ties, declared  a  natural  law,  or  a  law  in  the  secondary  sense,  to 
be  received  and  applied  by  him  with  universal  personal  extenft 
or  to  all  persons  within  the  power  or  recognized  territorial  juris- 
diction of  the  law  of  England  ;  and  so  have  refused  interna- 
tional recognition  of  his  chattel  condition.^  Nor  (if  Somerset 
had  been,  in  Virginia,  a  legal  person  in  bondage)  could  Lord 
Mansfield  say  that  the  law  of  England,  attributing  personal 
liberty  to  all  domiciled  or  native  subjects,  was  to  be  regarded 
as  the  recognition  of,  or  the  statement  of,  a  law  in  the  secondary 
sense,  a  natural  law,  and  that  that  n-ight  was  to  be  taken  by 
him  to  be  the  incident  of  a  state  of  things  existing  independ- 
ently of  rules  of  action  established  by  the  state,  and  one  attribu- 
ted to  all  persons  within  the  territorial  jurisdiction  as  by  a  law 
of  universal  extent,  a  law  applying  to  all  persons  irrespectively 
of  their  domicil  or  their  previous  subjection  to  other  laws  or  ju- 
risdictions, and  thus  have  refused  international  recognition  of 
the  relation  between  the  master  and  slave,  regarded  as  legal 
persons.' 

§  311.  Indeed,  since  there  was  no  statute  or  customary  nile 
that  the  colonial  slavery  should  not  be  recognized  in  the  British 
islands,  it  followed,  from  the  assumption  that  they  and  the 
American  colonies  were  under  the  same  sovereign  source  of  law, 
that  an  English  tribunal  administering  law  as  the  ascertained 
wiU  of  that  supreme  power,  was  bound  to  recognize  the  law  of 
slavery  as  a  personal  law,  according  to  the  g-zmsi-international 

'  See  ante,  p.  106.  '  See  ante,  p.  108. 


376  Mansfield's  inconsistency. 

rule  for  the  recognition  of  personal  laws  which  was  stated  in  the 
second  chapter.'  That  is  to  say,  while  the  domicil  of  the  slave 
and  his  master  remained  unchanged,  every  tribunal  represent- 
ing that  source  of  law,  in  any  part  of  the  empire,  was  bound  to 
recognize  within  its  particular  forum  the  relation,  created  by  the 
colonial  law,  as  jural  and  legal  ;  independently  of  its  connection 
with  the  law  of  nations — universal  jurisprudence — and  inde- 
pendently of  the  rule  of  comity,  which  properly  obtains  only  as 
between  independent  states.'  It  was,  so  to  speak,  stultifying  the 
jurisprudence  of  England,  for  a  judge  adopting  Lord  Mansfield's 
theory  of  the  public  law  of  the  empire,  to  declare  that  the  rela- 
tion between  the  master  and  slave  was  unlawful  in  England, 
because  contrary  to  natural  justice,  and  at  the  same  time  to 
admit  that  it  was  a  legal  relation  in  the  colony.'  For,  in  the 
colony,  that  relation  had  been  established  by  a  judicial  applica- 
tion of  natural  reason  by  tribunals  representing  there,  on  his 
theory,  the  same  juridical  sovereign  whom  the  King's  Bench 
represented  in  England.  Lord  Mansfield  in  this  decision 
ignored  the  historical  origin  of  negro  slavery,  when  he  declared 
it  to  rest  upon  statutes  having  a  definite  territorial  extent  in 
and  for  the  plantations  and  the  coast  of  Africa  ;  though  the 
essential  inconsistencies  in  his  "  opinion  "  would  not  thereby  have 
been  removed.* 

'  Ante,  p.  100,  and  notes. 

5  Coinp.  the  iironment  of  Tribaud,  for  the  master,  in  the  French  case,  13  Can.  CeL 
The  criticisms  of  the  English  editors,  in  20  Howell's  St.  Tr.,  p.  15,  note,  upon  this  ar- 
gument, are  unfair.  It  is  fully  as  logical  an  exposition  of  that  side  of  the  general 
question  as  is  Hargrave's  upon  the  other. 

'  Very  similar  is  Lord  Stowell's  observation,  2  Hagg.  Adm.  R,  pp.  114,  127. 

Montesquieu,  Lettres  Persanes,  Lettre  76.  "II  y  ^  long  temps  que  les  princes 
Chretiens  aflfi  anchirent  tous  les  esclaves  de  leurs  6tats  ;  parceque,  disoient  ils,  le  Chris- 
tianisme  rend  toux  les  hommes  6gaux.  II  est  vrai  que  cet  acte  de  religion  leur  etoit 
tr^s  utile ;  ils  abaissoient  par  la  les  seigneurs,  de  la  puissance  desquels  ils  reliroient  le 
has  peuple.  lis  ont  ensuite  fait  des  conquetes  dans  les  pays  ou  ils  ont  vu  qu'il  leur 
etoit  advantngeiix  d'avoir  des  esclaves,  ils  ont  permis  d'en  acheter  et  d'en  vendre, 
oubliant  ce  principe  de  religion  qui  les  touchoit  tant.  Que  veux-tu  que  je  te  dire  ? 
Verite  dans  un  temps,  erreur  dans  au  autre." 

During  the  American  war,  the  slaves  in  Virginia  and  Carolina  were  regarded  by 
the  English  as  propertj'  and  objects  of  booty.  It  was  estimated  that  not  less  than 
thirty  thousand  were  carried  off  from  Virginia.  The  policy  adopted  by  Dunmore  at 
the  beginning  of  the  war,  was  to  ann  the  slaves  against  their  masters,  but  this  was 
not  persevered  in.     3  Hildr.,  355. 

*  Mr.  Sumner,  in  a  speech  in  the  Senate  of  the  United  States,  August,  26,  1852, 
said  that  Lord  Mansfield  pronounced  this  decree  "  with  discreditable  reluctance,  sully- 


STATEMENT    OF    THE    DOCTRINE.  377 

§  312.  According  to  the  principles  herein  before  assumed, 
the  true  statement  of  the  international  law  involved  in  Somer- 
set's case'  is  this  : — The  laiu  of  nations — universal  jurispru- 
dence— as  then  recognized  by  European  states,  did  not  sup- 
port his  bond  condition,  whether  it  was  chattel  slavery  or  the 
bondage  of  a  legal  person.  This  condition  had  been  created  by 
the  local  law,  jus  proprium,  of  the  colony  in  which  he  had  been 
a  domiciled  inhabitant  ;  whether  he  had  there  been  held  as  a 
chattel,  or  as  a  person  bound  to  service  or  labor,  was  immaterial. 
The  law  of  the  foreign  jurisdiction — the  colony — was  to  be 
taken  to  be  jural — a  law  of  right — in  and  for  the  colony  :  its 
consequences  there  were  legal.  But  the  law  of  England  (ex- 
cept as  comprehending  the  law  of  nations — universal  jurispru- 
dence— if  it  then  supported  the  slavery  of  heathen  negroes'^) 
attributed  the  right  of  personal  liberty  to  all  natural  persons 
within  its  territorial  jurisdiction,  and  enforced  no  dominion  of 
one  private  person  over  another,  except  in  the  relations  of  the 
family,  relations  arising  out  of  primitive  and  remedial  law,  and 
in  some  local  districts,  certain  relations  founded  on  particular 
customary  law.  No  relation  of  this  kind  existed  between  Som- 
erset and  his  master.  The  law  which  attributed  the  so-called 
"  personal  rights  "  to  the  inhabitants  of  English  birth  (except 
as  modified  by  these  relations)  had  a  universal  personal  extent 
in  England,  which  prevented  the  operation  of  the  principle  of 

ing  his  great  judicial  name,  but  in  trembling  obedience  to  the  genius  of  the  British 
constitution."  This  is  hardly  grateful.  Even  if  the  decision  was  good  law,  Lord  Mans- 
field v/as  unable  to  give  good  judicial  reasons  for  it,  and  might  well  liave  been  reluc- 
tant openly  to  assume  the  province  of  legislation,  as,  from  his  opinion  and  observa- 
tions during  the  argument,  he  evidently  thought  himself  obliged  to  do.  It  seems  likely 
that  his  "  trembling  obedience  "  was  rendered  more  to  the  then  prevailing  current  of 
public  opinion,  (see  Dunning's  remark,  Lofft's  R.,  pp.  9,  10,)  than  to  a  sense  of  judi- 
cial responsibility. 

That  is  a  doubtful  compliment,  by  Best,  Ch.  J.,  in  P'orbes  v.  Cochran,  2  B.  &  C, 
470,  saying  that  the  judges  (in  Somerset's  case)  "  were  above  the  age  in  which  they 
lived,"  &c. 

Lord  Mansfield,  encouraging  a  general  officer  who  was  doubting  his  own  compe- 
tency for  the  judicial  duties  incident  to  the  office  of  governor  in  a  W.  I.  colony  to 
which  he  had  been  appointed,  told  him  it  would  be  easy  to  decide  justly — "  but  never 
give  your  reasons,  for  your  judgment  will  probably  be  right,  but  your  reasons  will  cer- 
tainly be  wrong."     Campbell's  Lives  of  the  Chief  Justices,  vol.  IL,  p.  572. 

'  The  law  applying  as  municipal  (internal)  law  has  been  stated,  ante,  §  189. 

'■'  The  name  James  Somerset  makes  it  probable  that  he  was  a  baptized  or  nomi- 
nally Christian  negro,  though  the  return  to  the  writ  states  that  he  was  a  native  Af- 
rican. 


378  OTHER    VIEWS    OF    SOMERSET'S    CASE. 

comity,  since  there  was  no  statute  or  international  custom  by 
which  these  general  principles  could  be  limited.' 

§  313.  This  statement  of  the  operation  of  international  pri- 
vate law  in  this  case,  is  based  upon  the  assumption  that  negroes 
could  not  be  at  that  time  held  in  slavery  under  the  internal 
law  ;  that  is,  that  no  negro  domiciled  in  England  could  there 
be  held  in  slavery.  It  was,  indeed.  Lord  Mansfield's  decision  of 
the  case  which  finally  established  this  doctrine  in  the  internal 
law,  and  thereby  liberated,  it  has  been  supposed,  a  large  num- 
ber of  negroes  retained  as  slaves  in  England.  But,  accordinc:  to 
the  review  of  the  cases  which  was  given  in  the  fourth  chapter, 
there  was  no  principle  on  which  a  domiciled  negro  could  be 
thus  held  in  involuntary  servitude. 

In  the  claim  of  ownership  in  England,  whether  under  the  inter- 
nal or  the  international  private  law,  the  principal  reliance  seems  to 
have  been  on  an  alleged  general  custom ;  meaning  the  then  custom- 
ary popular  recognition  in  England  of  the  relation  of  master  and , 
slave.  It  was  upon  this  ground  that  Lord  Stowell  objected  to 
this  decision,  saying  that,  from  the  time  of  the  establishment 
of  slavery  in  the  colonies,  negroes  had  been  bought  and  sold  in 
London  and  had  been  sent  back  thence  to  the  plantations. 

§  314.  But,  in  stating  that  during  the  two  and  twenty  years 
previous  "  decisions  "  of  great  authority  had  been  delivered  sup- 
porting that  "  system"  {i.  e.,  that  practice)  in  England,  Lord 
Stowell  certainly  asserted  more  than  judicial  history  warranted. 
It  has  herein  throughout  been  supposed  that  there  was  law  to 


'  Burgc,  1  Comm.,  p.  741,  says,  respecting  Somerset's  and  tbo  Scotch  case :  "  The 
principle  established  by  these  decisions  rests  on  grounds  which  are  indisputable.  A 
status  which,  like  slavery,  was  the  creature  of  municipal  regulation  alone,  could  have 
no  existence  in  a  country  where  that  regulation  not  only  had  no  force,  but  was  at  va- 
riance with  the  law  of  that  country."  By  "  municipal  regulation  "  the  author  here 
intends  positive  legislative  enactment,  and  illustrates  the  common  misapprehension  of 
the  legal  foundation  of  slavery.  It  appears  to  have  been  a  very  doubtful  question 
whether,  at  this  time,  slavery  was  at  variance  with  the  law  of  England  and  Scotland. 

Mr.  Hargrave's  argument  with  copious  notes  of  various  authorities  bearing  on  the 
question,  was  published  at  length  in  vol.  11.  of  his  State  Trials,  and  afterwards  in  20 
Howell's  State  Trials.  In  this  form  it  has  justly  been  referred  to  as  an  impar  ial  trea- 
tise. It  is,  however,  liable  to  the  same  criticism  Avith  all  the  English  arguments  and 
decisions  in  these  cases ;  that  is,  that  no  definite  principles  of  international  jurispru- 
dence are  enunciated;  and  the  undetermined  use  of  the  terms  positive  law,  natural  law, 
municipal  law,  law  of  natioiis,  ^x.,  deprives  it  of  proper  argumentative  consistency. 
Compare  ante,  p.  109  note. 


THE    DECISION   JUSTIFIED.  379 

maintain  in  England  the  right  of  property,  as  of  chattels,  in  a 
heathen  negro  slave, '  but  that  after  conversion  there  was  no  law 
having  the  character  of  universal  jurisprudence  and  no  jus  pro- 
prium  (unless  this  same  practice)  to  continue  that  right. 
After  such  conversion  the  courts  would  have  been  called  to  de- 
cide the  same  question,  in  and  for  England,  which,  it  has  been 
supposed,  the  colonial  courts  were  once  called  to  decide  for  their 
several  jurisdictions  ;  i.  e.,  what  was  the  status  which  existed 
after  the  conversion.'^  Now  it  seems  that,  before  this  case,  the 
weight  of  judicial  decision  had  been  that  negroes  were  not 
chattels  in  England  ;  and  though  there  was  a  prevalent  juristi- 
cal opinion  that  the  relation  of  master  and  servant  continued  ;^ 
that  the  obligation  of  the  servant  was  for  life  and  might  be  as- 
signed as  property,  it  was  nevertheless  a  mooted  question  and 
not  received  in  the  courts  as  a  settled  point  ;  some  j lodges  hav- 
ing positively  denied  the  existence  erf  any  such  relation.  And 
from  all  that  appears,  this  may  have  been  the  first  occasion  on 
which  a  judicial  tribunal  had  been  obliged  to  decide,  in  a  con- 
troversy between  the  master  and  slave,  whether  such  a  right  of 
private  dominion  and  correlative  obligation  could  be  maintained 
in  England. 

§  315.  The  practice  which  was  relied  on  was  then  the  hold- 
ing in  servitude  legal  persons,  and  so  to  be  distinguished  from 
chattel  slavery  under  the  laio  of  nations ,  which  had  been  recog- 
nized in  the  custom  of  merchants  and  the  common  law  of  Eng- 
land. For  that  customary  law  maintained  the  right  of  the 
master  only  as  a  right  to  a  chattel  and  while  the  negro  was 
heathen.  Now  a  change  of  religious  belief,  unless  marked  by 
the  ceremony  of  public  baptism,  could  not  have  been  matter  of 
public  notoriety,  and  there  is  reason  to  suppose  that  for  this 
reason  the  administration  of  baptism  was  often  withheld  when 


*  Blackstone,  1  Comm.,  425,  denied  that  any  discrimination  between  persons,  in 
respect  to  personal  rights,  according  to  tlieir  faith,  could  be  recognized  in  English 
law. 

"  Ante,  §§  178,  204. 

'  Molloy,  De  Jure  Maritlrao,  B.  3,  c.  1,  §  8.  See  Blackstone's  contradictory  state- 
ment, 1  Comm.,  424.  Chamberlayne  v.  Harvey,  a7Ue,  p.  182, — "  he  is  no  other 
than  a  slavish  servant." 


380  THE    DECISION    JUSTIFIED. 

it  would  have  been  otherwise  proper.'  And  the  majority  of  ne- 
groes imported  into  England  were  probably  not  distinguishable 
as  either  Christian  or  heathen.  A  large  proportion  may  be 
supposed  to  have  voluntarily  ^  continued  in  the  service  of  their 
former  owners,  and,  except  in  the  sales  which  may  have  taken 
place,  the  enforced  character  of  their  service  had  no  public 
recognition.'  The  sales  were  probably  confined  to  London  and 
the  larger  seaport  towns.  To  say  notliing  then  of  the  want  of 
judicial  recognitions  of  such  a  servitude,  and  nothing  of  judicial 
dicta  against  its  existence,  the  practice  of  holding  in  bondage 
negroes,  who  were  not  known  in  law  as  chattels,  had  not  that 
general  publicity,  definite  character  and  general  recognition 
which  must  characterize  custom  if  it  is  to  be  held  for  common 
law.^ 

Negro,  slaves  could  hardly  have  been  brought  into  England 
before  the  middle  of  the  seventeenth  century.  The  practice  of 
detaining  christianized  negroes  in  servitude  there  had  not  then 
the  characteristic  requisites  of  either  general  or  particular 
custom.^ 

There  are,  too,  some  cases  in  which  judicial  tribunals  may 

'  Observations  of  Lord  Mansfield,  Loffc's  R. ,  p.  8. 

'  Even  though  they  received  no  wages,  and  therefore  they  might  not  be  able  to  re- 
cover any  thing  for  their  service  on  a  quantum  meruit ;  see  Alfred  v.  Marquis  of  Y\tz- 
james,  3  Espinasse,  p.  3.     (Easter,  39  Geo.  III.) 

'  That  negroes  were  sometimes  sold  in  London,  in  corpore,  appears  from  advertise- 
ments in  the  papers  of  that  day.  (Senator  Sumner's  Speech,  Senate,  Aug.  2G,  1852.) 
The  sales,  at  London,  of  negroes  then  in  the  Plantations  on  the  estates  to  which  they 
belonged,  which  were  probably  of  frequent  occurrence,  were  not  instances  of  the  custom 
which  is  now  under  consideration.  Such  sales  were  made  there  after  this  decision,  as 
sales  of  negroes,  being  in  foreign  slaveholding  territories,  may  still  be  made. 

*  See  ante,  §31  and  notes.  Lindlej''s  Thibaut,  Appendix,  xiii-xvi.  The  custom, 
so  far  as  it  existed,  may  also  in  part  be  ascribed  to  ignorance  of  their  rights  on  the 
part  of  the  slaves.  This  could  not  perhaps  have  been  considered  imder  the  stern  rule 
of  English  law.  The  Roman  law  admitted  the  plea  of  ignorance  of  law  in  certain  cases. 
"It  was  a  valid  plea  to  minors,  women,  soldiers,  (propter  rusticitatem,)  to  all  vho  were 
beyond  the  reach  of  legal  advice  and  information." — J.  G.  Phillimore's  Principles,  &c., 
p.  97. 

'  "  Customs  which  are  opposed  to  written  law  (correctorise,  derogatorise)  are  held  by 
the  Roman  jurists  to  be  invalid,  unless  they  have  been  specially  confirmed  by  the  su- 
preme power  of  the  state,  or  have  existed  immemorially :  and  it  is  immaterial  whether 
they  consist  in  mere  non-obser\-ance  of  the  written  law  (desuetudo)  or  in  the  observ- 
ance of  new  principles  opposed  to  such  law,  (conmetudines  abrogatoriae ;)  and  it  is  also 
immaterial  whether  the  customs  have  or  have  not  been  confirmed  by  judicial  decisions." 
Thibaut,  Lindley's  Transl.  §  17.  But  the  author  notes  a  great  variety  of  opinion  on 
these  points.  It  might  be  said  that  in  the  great  charters,  the  Bill  of  Rights,  the 
Habeas  Corpus  Act,  &c.,  the  law  attributing  personal  rights  to  the  EngUsh  subject,  in 
England,  had  become  written  or  statute  law. — 1  BL  Comm.  127,  128. 


HOW  RECONCILED  WITH  COLONIAL  LAW.        381 

determine  the  validity  of  customs  by  a  standard  of  reason.'  But 
the  nearest  standard  of  this  reason  must  be  the  established  doc- 
trines of  law.  The  practice  under  consideration  was  not  sup- 
ported by  universal  jurisprndence.  Its  recognition  was  moreover 
contrary  to  the  maxim  of  English  law,  which  declared  that  in 
all  cases,  or  in  all  doubtful  cases,  liberty  should  be  favored.^ 
Not  having  then  the  other  marks  of  valid  customary  law,  its 
character  was  to  be  judged  by  these  jural  standards  which  exist- 
ed at  its  inception.  So  far  then  froba  being  a  coexistent  part 
of  common  law,  it  was  itself,  in  its  beginning  and  continuance, 
contrary  to  law. 

§  316.  It  may  be  thought  that,  by  the  same  argument,  the 
colonial  courts  could  not  (as  it  was  herein  before  supposed  they 
might)  have  maintained  in  America  the  slavery  of  christianized 
Africans  and  Indians,  independently  of  statute  law. 

But  in  the  colonies  the  common  law  of  England  was  not,  as 
in  England,  a  superior  criterion  of  natural  reason  in  judicial  de- 
termination of  the  condition  of  all  persons  within  the  territorial 
forum  of  jurisdiction.  In  determining  the  condition  of  those  to 
whom  it  did  not  have  a  personal  extent,  the  law  of  England 
was  only  one  among  other  indications  of  natural  reason.  It  is, 
however,  undeniable,  that  the  same  maxims  in  favor  of  personal 
liberty  had  had  in  Europe  the  character  of  universal  jurispru- 

'  Consuetudinis  ususque  longsevi  non  vilis  auctoritas  est,  sed  non  usque  adeo  sui 
valitura  momento,  ut  rationem  vincat  aut  legem. — Cod.  viii.,  tit.  53,  Quw  sit,  ^c,  1.  2. 

'  "  Humana  natura  in  libertatis  causa  favorem  semper  magis  quam  in  causis  aliis 
deprecetur."  Fortescue  de  Laudibus,  c.  47.  Coke  Litt.,  fo.  124,  b. ;  in  §  193,  Little- 
ton, stating  a  rule  in  trj-ing  a  claim  of  villenage,  says, — et  ceo  est  in  favorem  libertatis. 
Coke's  note  is — "  It  is  commonly  said  that  three  things  be  favored  in  law  :  life,  liber- 
ty, dower."  And  cites  Fortescue,  cap.  42.  "  Impius  et  crudelis  judicandus  est  qui  lib- 
ertati  non  favet.  Anglic  jura  in  omni  casu  libertati  dant  favorem."  The  whole 
passage  in  Fortescue  is,  "Crudelis  necessario  judicabitur  lex,  quse  ser\-itutem  augmen- 
tat  et  minuit  libertatem.  Nam  pro  eft.  natura  semper  implorat  humana.  Quia,  ab 
homine  et  provitio  introducta  est  servitus.  Sed  libertas  a  Deo  hominis  est  indita 
natura.  Quare  ipsa  ab  homine  sublata  semper  redire  gliscit,  ut  facit  omne  quod 
libertati  naturali  privatur.  Quo  ipse  et  crudelis  judicandus  est  qui  libertati  non  favet 
Haec  considerantia  Anglire  jura  in  omni  casa  libertati  dant  favorem."  "  The  law  favors 
liberty  and  the  freedom  of  a  man  from  imprisonment,  and  therefore  kind  interpretations 
shall  be  made  in  its  behalf" — Wood's  Institutes,  c.  1,  §  5,  p.  25.  "It  is  said  the  law 
of  England  is  favorable  to  liberty ;  and  so  far  this  observation  is  just,  that  when  we 
had  men  in  a  servile  condition  amongst  us,  the  law  took  advantage  even  of  neglects  of 
the  masters,  to  enfranchise  the  villein  ;  and  seemed  for  that  purpose  to  subtilize  a  little, 
because  our  ancestors  judged  that  freemen  were  the  real  support  of  the  kingdom," — 
Burke's  Accounts  of  European  Settlements  in  America,  vol.  2,  p.  130. 


382  HOW    RECONCILED    WITH    COLONIAL    LAW. 

dence,  being  expressed  in  the  Roman  law  and  received  by  all 
European  states.*  The  only  answer,  perhaps,  which  can  be 
given  to  this  is  that  the  European  states  which  planted  colonies 
in  the  new  world  by  right  of  discovery,  and  there  allowed  the 
enslavement  of  the  natives  or  promoted  the  introduction  of 
African  slaves,  had,  to  a  certain  extent,  modified  the  doctrines 
of  universal  jurisprudence  in  every  determination  of  the  relation 
of  these  races  to  the  white  colonist,  and  limited,  to  a  certain 
extent,  the  personal  extent  of  these  principles  in  and  for  Ameri- 
ca. The  colonial  courts  had,  in  this  instance,  more  autonomic 
power  than  the  European  tribunals,  and  it  is  not  necessary  to 
suppose  that  natural  reason  applied  judicially  to  the  circum- 
stances of  the  two  races  in  America  should  produce  the  same 
effects  as  when  applied  to  the  situation  of  the  same  races  in 
Europe.*^ 

'By  the  earliest  Roman  law,  xii.  Tables,  tab.  vi.  §  5,  "In  litigated  cases  the  pre- 
sumption shall  always  be  on  the  side  of  the  possessor,  and  in  disputes  about  liberty  or 
slavery,  the  presumption  shall  always  be  on  the  side  of  liberty." — Cooper's  Justinian  ; 
Appendix  I.  Causa  libertatis  non  privata  sed  publica  est. — Dig.  Lib.  xl.,  tit.  5,  1.  53. 
Nemo  enim  prohibendus  est  libertati  favere. — Dig.  Lib.  xliii.,  tit.  29,  §3,  1.  9.  Quo- 
ties  dubia  intei-pretatio  libertatis  est,  secundum  libertatcm  respondendum. — Dig.  Lib. 
1.  tit.  17,  leg.  20.     Libertas  omnibus  rebus  favorabilior  est. — Ibid.  1.  22. 

^  Ante,  Y).  80,  note  2. 

If  the  reader  is  unable  to  reconcile  the  action  of  these  several  judicatures,  he  can 
apply  to  either,  at  his  discretion,  the  maxims — Xon  omnium  quae  a  majoribus  constitu- 
ta  sunt  ratio  reddi  potest.  Et  ideo  rationes  eomm  quae  constituuntur,  inquiri  non 
aportet,  alioquin  multa  ex  his  quaj  carta  sunt  subvertuntur. — Dig.  I.  tit.  3,  L  20. 
And — Communis  eiTor  facit  jus. 


CHAPTER  X 

OF  THE  PRIVATE  INTERNATIONAL  LAW  DURING  THE  COLONIAL 
PERIOD.— THE  SUBJECT  CONTINUED.— OF  DOCTRINES  OF  THIS 
LAW,  APPLYING  TO  CASES  OTHER  THAN  THOSE  RESEMBLING 
somerset's   CASE. 

§  317.  Although  the  judicial  tribunals  of  one  or  more  na- 
tions, or  of  one  or  more  parts  of  the  British  empire  may,  on  the 
principles  set  forth  in  the  preceding  chapter,  have  refused  to 
maintain,  as  between  persons  within  their  respective  jurisdic- 
tions, the  relation  of  master  and  slave  existing '  under  the  law  of 
another  country,  there  is  no  doubt  that  the  same  did  recognize, 
or  would  have  recognized  the  validity  of  the  right  of  ownership 
as  the  effect  of  a  jural  rule,  in  and  for  the  territorial  limits  of 
the  foreign  country.  It  would  stiU  have  been  consistent,  in 
such  tribunals,  to  have  enforced  contracts  founded  on  the  'ex- 
istence of  that  right  of  ownership,  or  to  have  enforced  compen- 
sation for  tortious  acts  interfering  with  its  enjoyment  in  the 
foreign  country  or  upon  the  high  seas.  There  can  be  no  doubt 
that  the  right  in  slave  property  was  thus  internationally  recog- 
nized in  every  jurisdiction  of  the  British  empire  during  the  co- 
lonial  period,  and,  to  the  same  extent,  in  European  jurisdictions 
where  slavery  was  unknown  to  the  local  law.=» 

*  Ante,  p.  59. 

sistenfwkl.?hr'"^-'"''°,°"'u-'',  ol/'^^J^T  ^'ould,  however,  have  been  utterly  incon- 
nni  1  i^'rTP'V^:,^'"*'  Mansfield  and  the  Scots  Court  of  Session  had  pro- 
hlrnfVh  •  J  '^  ^"""^  Robertson,  in  the  same  court,  recognized  in  1810.  as  the 
?hP  W  wTy  H '""'"'  r^'%^'  '^''^'  "  ^"*  '^''^  '''  ^"°thcr  set°of  cases  in  whi^h,  also, 
-L  1  V  4'*'"«Sarded  ;  I  mean  those  cases  in  which  the  lex  loci  is  contrary  to  the 
f!L  of  I-  ZZT^  "^''^  of  justice.  This  may  be  exemplified  by  the  decision  in  the 
ca^e  of  Ln.ght,  the  negro,  15  January,  1770.     His  master  bought  him  as  a  slave  in 


384  RETURN    TO    SLAVE-DOMIGIL. 

§  318.  The  question  of  the  condition  of  a  person  who  may 
have  returned  to  the  jurisdiction  or  forum  in  which  he  had  been 
held  in  slavery,  after  ha\4ng  been  in  a  foreign  country  where 
that  slavery  was  not  recognized,  or  where  he  had  been  actually 
free,  has  usually  been  classed  as  a  question  of  international  pri- 
vate law.  No  cases  presenting  this  question  are  on  record  as 
occurring  before  the  separation  of  the  colonics  from  the  British 
empire.  Gudelin  De  Jure  Novissimo,  lib.  i.  c.  4,  9,'  seems  to 
hold  that  slaves  from  Spain  would  not  become  absolutely  free 
on  reaching  the  Netherlands,  and  that  they  might  be  claimed  if 
found  afterwards  in  Spain,  although  the  master  could  have  no 
right  over  them  while  in  the  Netherlands.  He  appears  also  to 
refer  only  to  fugitive  slaves.  "  Equidem  arbitror  servos  His- 
panice  hue  vol  in  Franciam  venientes  proprie  ad  libertatem  non 
pervenire,  quin  repeti  adhuc  in  Hispania,  si  postea  il)i  depre- 
hendantur,  in  servitutem  possint  :  verum  in  libertatem  eos  de- 
negata,  quamdiu  hie  sunt,  adversus  ipsos  jurisdictione  defendi. 
Non  enim  ser\'i  fugitivi  recte  comparabuntur  illis,  qui  post- 
liminio  e  manu  hostium  revertuntur.  I.  Bequirendi,  et  passim 
C.  de  servis  fugitivis,  Juncta  I.  Postliminium,  D.  De  captivis  et 
postlim.  reversis  ;  aut  feris,'  qua?  cum  custodiam  capientis  eva- 
serunt  se  in  naturalem  recepisse  libertatem  intelliguntm- ; 
^ferce  igitur  cum  §§  seqq.  Inst.  De  rerum  divisione."  ^ 

§  319.  The  argument  here  is  merely  that  the  situation  of  a 
slave  who  has  got  beyond  the  jurisdiction,  in  which  he  was  by  law 
a  slave,  is  not  analogous  to  that  of  the  Roman  citizen  who,  having 
been  enslaved  by  the  enemy,  had  escaped  into  Roman  or  friendly 
territory  or  been  ransomed  or  recaptured,  or  to  that  of  animals 
ferae  naturae  wliich,  being  escaped  from  the  first  taker,  become 


Jamaica,  where  such  purchases  are  legal.  Neither  the  purchase  nor  the  legality  of  it, 
according  to  the  lex  loci,  were  denied ;  but  the  court  held  that  the  dominion  assumed 
over  the  negro  under  that  law,  heinff  in  itself  unjust,  could  not  be  supported  in  this 
country  to  any  extent,  and  judgment  proceeding  on  the  same  principles  was  pro- 
nounced in  England  in  the  case  of  Somerset."  Ferguson's  Rep.  on  Divorce,  App.  396. 
Compare  ante,  p.  192,  note,  the  quotation  from  Savigny. 

'  Koted  by  Groenewegeii  in  a  passage  already  cited,  ante,  p.  3.35. 

'  Christina^us  appears  to  have  concurred  in  this  opinion ;  compare  Christin.  Decis. 
vol.  iv.  lib.  7,  tit  36,  decis.  80,  n.  4.  "  Ipse  autem  D.  Gudelinus  mens  alias  confrater 
in  eodem  consilio  supremo,  subdit  se  arbitrari  servos,"  etc. 


RETURN    TO    SLAVE-DOMICIL.  385 

res  niillius,  and  may  be  said  to  have  regained  whatever  liberty 
they  had  before.^ 

But,  in  the  modern  international  case  supposed,  the  slave 
has  not  merely  been  out  of  the  jurisdiction  by  whose  law  he  had 
been  a  slave,  but  he  has  been  within  a  jurisdiction  by  whose 
law  he  was  declared  free.  There  has  been,  in  this  case,  a  manu- 
mission as  complete  and  competent  in  law  as  any  which  could 
be  given  by  the  master  alone,  for  the  master's  act  can  derive 
force  only  from  the  juridical  wiU  of  the  sovereign  power  under 
wliich  master  and  slave  are  living  at  the  moment.*  Now,  since 
the  effects  of  manumission  are  ascribed  to  universal  jurispru- 
dence, (manumissiones  quoque  juris  gentium  sunt,)  it  would  seem 
that  such  emancipation  of  the  slave  by  the  law  of  the  foreign 
jurisdiction  was  to  be  judicially  recognized  everywhere,  in  all 
jurisdictions  into  which  he  should  afterwards  pass,  (unless  there 
should  therein  be  some  jus  proprium,  customary  or  statute  law, 
requiring  a  contrary  judicial  action,)  even  in  that  in  which  he 
had  formerly  been  a  slave. 

This  certainly  would  seem  to  have  been  the  law  when  the 
slave  had  been  carried  or  sent  by  the  owner  into  the  foreign 
country  wherein  he  had  been  thus  emancipated.^  But  a  like 
judicial  recognition  of  this  emancipation  may,  perhaps,  have 
properly  been  refused,  in  the  country  where  the  person  had 
been  a  slave,  if  it  had  taken  place  by  his  voluntary  escape  ;  by 


-  Animals  ferae  naturae  did  not,  by  escaping,  cease  to  be  res,  objects  of  property, 
but  were  the  law'ful  prize  of  the  first  next  captor.  In  the  modern  iuternational  case 
the  slave  has,  by  being  in  a  jurisdiction  wherein  his  slavery  is  not  recognized,  ceased 
to  be  property.  It  is  alisurd  to  conclude  that  escaped  slaves  are  always  the  property 
of  the  owner  from  whom  they  escaped,  from  the  proposition  that  they  do  not,  like 
animals  fene  natnrie,  become  res  nullius,  or  the  property  of  the  first  taker.  The  first 
question  is,  are  they  res,  or  persons?  "The  jus  postliminii  was  a  fiction  of  the  Roman 
law,  by  which  persons  and  things  taken  by  the  enemy  were  restored  to  their  former 
state  upon  coming  again  under  the  power  of  the  nation  to  which  they  formerly  be- 
longed. Postliminium  fingit  eum  qui  captus  est  iu  civitate  semper  fuisse.  Inst.  I.  t.  12, 
§  5."^  1  Kent,  108.  Also,  Dig.  L.  id,  tit.  15,  (cited  by  Gudelin,)  g^  3,  4,  5,  15.  Gu- 
delin's  conclusion  is  rather  in  analogy  than  otherwise  with  the  law  of  postliminy ; 
therein  likenmg  the  foreign  country,  in  which  the  slave  became  free,  to  a  hostile  nation 
or  one  with  which  the  Romans  had  no  friendly  relations  in  peace.  D.  L.  49,  t.  15.  g  3. 
Inst.  I.  t.  12,  5.  In  pace  quoque  postliminium  datum  est;  nam  si  cum  gente  aUqua 
neque  amicitiam,  etc.,  cited  aiUe,  p.  151,  note  2. 

'  Ante,  j  206,  and  the  notes. 

'  But  Lord  Stowell  m  2  Hagg.  Adm.  R.  100,  113,  held,  that  even  this  would  not 
be  equivalent  to  manumission. 

25 


386  CHATTEL    OR    BONDMAN.      A    DIFFERENCE. 

adopting,  in  tliis  case,  the  rule  of  Koman  law  that  the  flight  of 
a  slave  should  not  be  the  legal  cause  of  the  master's  loss.' 

§  320.  It  would  seem  that  if  the  status  of  the  natural  per- 
son whose  condition  was  in  question,  had  been  that  absolute 
chattel-slavery  which  was  once  recognized  in  universal  juris- 
prudence, such  person,  though  having  that  status  under  the 
law  of  some  one  country,  could  not  have  been  said  to  have  a 
domicil  therein  ;  and  that  there  could  be  no  determination  of 
the  question  of  status  by  recognizing  the  law  of  domicil,  imtil 
he  should  have  become  a  legal  person.  But  if  taken  to  a 
foreign  country,  by  whose  law  he  became  free,  he  would  therein, 
for  the  first  time  in  his  existence,  have  become  a  legal  person  ; 
and  his  only  possible  domicil  would  then  have  been  that  coun- 
try. And  then  the  rule  for  determining  the  status  according 
to  the  law  of  the  domicil  would  have  required  a  judicial  recog- 
nition of  his  free  condition  even  in  the  country  where  he  had 
been  formerly  a  slave. '^ 

At  least  it  may  be  assumed  that  the  condition  of  slavery, 
in  case  of  such  return,  could  not  have  been  supported  by  a  ref- 
erence to  the  law  of  domicil,  if  the  former  condition  of  the  slave 
had  been  that  of  absolute  chattel  or  res  positee  in  commercio. 

§  321.  But  if  the  condition  of  slavery  had  originally  been 
that  of  a  legal  person,  in  a  relation  existing  under  the  jus  pro- 
prium,  he  would  have  had  there  a  domicil.  And  it  might  be 
said,  that  the  mere  fact  of  his  having  been  in  another  jurisdic- 
tion, where  that  relation  was  not  recognized,  was  not,  in  itself, 
a  change  of  domicil.     It  would  depend  upon  the  slave's  capa- 


'  Cod.  lib.  vi.  tit.  1.  1.  1.  Servum  fugitivum  sui  furtum  facere,  et  ideo  non  habere 
locum  nee  usucapionem  nee  longi  temporis  praescriptionem,  manifestum  est ;  ne  ser- 
voruni  fuga  dominis  suis,  ex  quacunqne  causa,  fiat  damnosa.  And  from  Dig.  lib.  xlix. 
tit.  15,  1.  12,  §§  8,  9;  1.  18,  §  5 ;  1.  27,  30,  it  appears  that  a  slave  taken  by  the  enemy 
or  stolen,  could  not  acquire  liberty  as  against  his  former  OANTier  by  any  emancipation 
otherwise  valid. 

In  the  time  of  Justinian,  slavery  being  ever\-where  recognized,  jure  gentium,  the 
modem  international  case  of  emancipation  by  mere  change  of  jurisdiction  could  not 
have  occurred.  A  close  analogy  might  be  found,  where  a  captive  enemy,  sold  as  a 
slave  among  the  Romans,  had  escaped  to  his  own  nation.  Since  he  must  have  be- 
come free  by  operation  of  law  there,  the  question  might  occur,  if  he  should  after- 
wards, in  time  of  peace,  come  within  Roman  territory,  whether  he  would  be  there  free 
or  not. 

»  ^w<e,  pp.  49,  109. 


NO    EXTRADITIOIf    OR    RENDITION.  387 

city  to  acquire  a  domicil ;  and  upon  his  intention  to  do  so,  pro- 
vided he  liad  the  capacity.  If  it  should  be  held  that  such 
capacity  could  not  exist  independently  of  the  master's  consent, 
yet  in  cases  where  the  slave  was  not  a  fugitive  but  had  been 
carried,  by  the  master,  into  a  jurisdiction  not  recognizing  sla- 
very, the  latter  must  be  regarded  as  consenting  to  the  operation 
of  laws  to  which  he  voluntarily  and  unnecessarily  had  subjected 
himself.  But  still,  in  that  case,  the  intention  of  the  slave 
party  to  acquire  a  domicil  must  be  essential,  and  it  would  not 
be  acquired  in  cases  where  he  had  remained  with  his  owner 
or  master,  and  returned  with  him  to  their  former  common 
domicil. 

§  322.  From  the  various  authorities  and  instances  which 
have  here  been  collected,  it  appears  that  the  correlative  rights 
and  obligations  between  persons  who,  in  another  state  or  forum, 
had  sustained  the  relation  of  master  and  slave,  had,  in  every 
state  or  forum  of  jurisdiction  wherein  the  master  had  made  a 
public  claim  for  personal  service,  been  regarded  only  as  rights 
and  obligations  determinable  by  private  international  law  and 
as  subjects  of  ordinary  judicial  inquiry  solely.  Or  again,  to  use 
a  negative  form  of  expression,  the  question  of  maintaining  those 
rights  and  obligations,  in  the  state  or  forum  where  the  claim 
had  been  made,  had  never  been  regai-ded  as  one  arising  under 
public  international  law,  (or  the  law  of  nations  in  that  sense,) 
the  rule — a  law  in  the  imperfect  sense — operating  on  states  or 
nations  as  its  subjects.  The  demand  of  the  claimant  owner 
had  not  been  made  upon,  or  at  least  had  never  been  enter- 
tained by  the  administrative  officers  of  the  state.  Or  again — 
in  a  different  form  of  expression — the  claim  of  such  a  master  to 
such  a  slave  had  not  been  made  as  a  demand  for  "  extradition  " 
or  "  rendition  "  ujjon  those  who  might  represent  the  state  in  its 
sovereign  intercourse  with  foreign  states  and  alien  persons. 

It  may  have  been  that,  during  the  period  which  has  herein 
been  considered,  such  demands  and  extraditions  were  sanctioned 
and  allowed  by  public  international  law  in  the  cas3  of  convicted 
criminals  or  persons  fleeing  from  justice.  And  it  may  have 
been  that  in  that  case  such  "  extradition  "  was  decided  upon 


388  THE    PERSONAL    LAWS. 

without  reference  to  any  ordinary  judiciary  or  administrators  of 
private  law — the  ordinary  courts  of  law.  It  certainly  does  not 
appear  that  similar  demands  were  ever  allowed  in  Europe  or 
America,  if  ever  made,  for  fugitive  slaves,  at  any  time  before 
the  formation  of  the  present  Constitution  of  the  United  States. 

§  323.  A  variety  of  circumstances  may  be  imagined  in  which 
the  determination  of  rights  and  obligations  arising  out  of  the 
status  of  slavery  would  (from  the  fact  that  the  persons,  whose 
rights  and  obligations  were  to  be  determined,  had  at  different 
times  been  subject  to  different  jurisdictions)^  present  questions 
of  private  international  law.  But  there  are  no  records  to  show 
whether,  except  in  the  circumstances  already  considered,  the 
application  of  that  law  to  questions  of  personal  status  had  ever, 
during  the  colonial  period,  been  exemplified  in  actual  cases  be- 
fore judicial  tribunals.  And,  except  in  these  instances,  the  pri- 
vate jurists  of  the  time  now  under  consideration  do  not  appear 
to  have  examined  into  its  application.  No  examination  there- 
fore will  be  here  attempted  of  any  such  supposable  cases. 

§  324.  Recurring  again  to  those  laws  which  have  already  been 
described  as  having  a  personal  extent,  in  reference  to  two  classes 
of  persons  in  the  American  colonies,  and  thus  having  had  an  in- 
ternational or  Q'wasi-interuational  operation  therein,'  although 
the  relative  rights  of  persons,  of  European  birth  or  descent,  in 
respect  to  things  or  classes  of  things  might  differ  in  the  several 
colonies,  the  law  of  individual  and  ordinary  relative  rights,  in 
relations  wherein  persons  were  the  objects  of  action,  was  substan- 
tially the  same,  for  domiciled  inhabitants  of  the  Enghsh  race, 
in  each  colony  as  in  England  itself  When  therefore  the  inhabi- 
tant of  any  particular  jurisdiction  of  the  empire,  being  of  Euro- 
pean race,  appeared  within  any  other  particular  jurisdiction  of 
the  empire,  although  his  rights  in  relation  to  things  might  dif- 
fer from  those  of  the  domiciled  inhabitant  of  that  jurisdiction, 
and  the  determination  of  his  relations,  in  that  respect,  might 
present  a. case  of  the  so  called  "  conflict  of  laws,"^  to  be  deter- 

*  Ante,  %  74. 

'  Ante,  §§  193,  208,  2-tl-2m 

*  Compare  Chalmers"  Pol.  Annals,  698,  692 


SLAVERY    NOT    PROTECTED    BY    THEM.  389 

mined  by  the  private  international  law,  as  known  in  that  juris- 
diction, yet  his  individual  and  ordinary  relative  rights,  constitut- 
ing his  personal  condition  or  status,  were,  by  force  of  the 
national  law  of  the  empire,  the  same  as  those  of  the  domiciled 
inhabitant  of  the  same  race  in  like  circumstances  of  natural  con- 
dition; that  law  having  the  effect  of  an  international  law  in 
securing  to  him  those  rights  in  each  several  jurisdiction  of  the 
empire,  though  not  therein  domiciled. 

The  English  law  of  rights  and  liberties,  being  thus  a  per- 
sonal law  to  the  domiciled  subject  of  European  race,  secured  to 
him  the  right  of  locomotion  and  residence  throughout  the  em- 
pire, irrespectively  of  the  boundaries  of  particular  jurisdictions  ; 
and  gave  him  the  right  of  acquiring  a  domicil  in  any  part  of  the 
national  domain. 

§  325.  If  the  domiciled  white  inhabitant  of  one  of  those 
several  jurisdictions  appeared  in  another  claiming  therein  the 
rights  of  an  owner  in  respect  to  a  person  held  by  him  as  a  slave 
in  the  place  of  his  domicil,  that  claim  could  be  supported  by 
the  force  of  "  the  common  law,"  as  the  personal  law  of  the 
privileges  of  the  master  having  national  extent,  only,  if  ever, 
while  the  historical  latv  of  nations — universal  jurisprudence — 
recognized  chattel  slavery.  For,  as  has  been  shown,  it  was  only 
by  virtue  of  this  law  of  nations,  that  chattel  slavery  could  be 
held  to  be  supported  by  the  common  law  of  England.  Although 
the  right  of  private  property  was  an  individual  right  under 
"  common  law,"  yet,  in  England,  property  was  to  be  defined 
either  by  universal  jurisprudence  or  the  local  internal  law  of 
England,'  and  it  has  been  shown  that  servitude  under  the  in- 
ternal law  of  England  was  known  only  as  a  feudal  relation,  ex- 
cept while  the  law  of  nations,  judicially  cognizable,  supported 
chattel  slavery.'^  When  that  law,  during  the  colonial  period, 
became  changed,  the  extent  of  the  right  of  property  under 
English  common  law  became  modified.  Therefore  admitting 
that,  at  the  introduction  of  slavery  into  the  colonies,  the  com- 
mon law  of  England  recognized  slave  property,^  yet,  towards 

'  Ante,  §  215,  244.  '  Ante,  §§  291,  292.  »  Anle,  §§  201,  281. 


390  STATUS   OF    AFRICANS    BY    LAW    OF    NATIONS. 

the  end  of  the  colonial  period,  the  right  of  a  domiciled  master 
in  respect  to  his  baptized,  civilized,  American-bom  negro, 
(whether  by  law  a  chattel,  or  a  bond  person,)  rested  in  the  place 
of  his  domicil,  upon  the  local  law  only,  and  its  recognition  in 
any  other  colony  depended  upon  the  principle  of  comity  with 
its  limitations,  as  they  have  been  before  described,' 

§  326.  So,  on  the  other  hand,  although  the  condition  of  a 
person  of  the  African  or  Indian  races,  domiciled  in  any  one  ju- 
risdiction of  the  empire,  miglit,  under  the  local  law  of  that 
jurisdiction,  consist  in  rights  of  the  same  legal  nature  as  those 
which  characterized  the  condition  of  an  inhabitant  of  the  same 
jurisdiction  who  was  of  the  English  or  European  race,  yet  those 
rights  were  the  result  of  a  law  confined  in  its  territorial  extent 
to  that  jurisdiction,  and  not  of  a  law  having  national  extent ; 
and  therefore  the  support  of  those  rights  or  of  that  condition 
would  depend,  in  any  other  part  of  the  empire,  upon  the  private 
international  law  as  received  and  applied  therein  by  the  local 
(colonial)  source  of  power. 

§  327.  It  would  depend  upon  the  actual  international  recog- 
nition given  by  different  nations  to  the  relations  of  alien  negroes, 
created  under  the  laws  of  their  domicil,  whether  any  principles, 
having  personal  extent  to  them  only,  should  acquire  the  char- 
acter of  a  law  of  nations  or  a  rule  of  universal  jurisprudence, 
after  the  time  at  which  chattel  slavery  had  ceased  to  be  sup- 
ported by  that  law.  If,  for  the  negro  race,  in  international  re- 
lations created  by  the  public  and  private  law  of  different  coun- 
tries, only  a  partial  recognition  should  be  made  of  a  condition  of 
rights  and  privileges,  such  as  in  like  circumstances  would  be 
given  to  whites,  then,  although  the  slavery  of  an  alien  negro 
might  not  be  internationally  recognized,  there  might  a  certain 
condition  of  social  inferiority  be  assigned  to  him  in  the  forum 
of  jurisdiction,  based  upon  universal  jurisprudence. 

But  it  has  been  shown  that  the  condition  of  a  private  person 
in  respect  to  privilege  can  be  attributed  to  the  laio  of  nations 

'  See  ante,  p.  324,  where  it  was  assvmeil  that  before  the  close  of  the  colonial  period 
the  right  of  ownership  would  not  have  been  sustained  by  the  "  common  law  of  Eng- 
land "  having  personal  extent  throughout  the  empire.     It  is  here  stated  asjiroved. 


INTERNATIONAL    SLAVE-TRADE,  391 

only  so  far  as  it  embraces  relations  which  will  continue  the  same, 
notwithstanding  a  change  of  jurisdiction  ;  and  that,  when 
chattel  slavery  is  no  longer  recognized,  no  other  condition  of  a 
private  person  can  be  attributed  to  universal  jurisprudence  than 
such  as  consists  in  the  rights  and  obligations  of  the  family,  and 
those  resulting  from  contracts.  There  is  nothing  in  the  history 
of  either  international  or  of  municipal  (internal)  jurisprudence, 
during  the  colonial  period,  to  indicate  that  there  was  any 
definite  condition  of  a  legal  person,  in  respect  to  those  rights 
which  coidd  be  recognized  in  the  case  of  an  alien  negro  under  a 
judicial  derivation  of  law,  and  which  might  not  equally  have 
been  attributed  to  a  white  or  European.  In  all  parts  of  the 
American  continent,  however,  domiciled  negroes  or  Indians  were 
placed  in  an  inferior  condition  to  the  whites  ;  in  respect  either 
to  civil  or  political  privileges  ;  and  in  that  branch  of  the  law 
which  has  been  called  police  law,  applying  equally  to  aliens  and 
domiciled  persons,  derived  from  statute  regulation,  a  distinction 
had  been  made  between  free  negroes  and  free  whites,  and  the 
same  distinction  existed  in  all  the  colonies  settled  by  European 
nations  in  America.  This  fact,  of  so  general  prevalence,  may 
perhaps  be  said  to  have  constituted  during  the  colonial  period 
a  recognized  disability  in  persons  of  the  negro  race  under  the 
"  law  of  nations  ; "  in  this  sense,  that,  unless  specially  provided 
against,  all  international  transactions  or  agreements,  affecting 
the  right  of  the  subjects  of  different  countries,  would  be  sup- 
posed to  have  admitted  the  distinction.' 

§  328.  When  chattel  slavery  had  thus  ceased  to  be  support- 
ed by  the  jurisprudence  of  the  greater  number  of  civilized 
nations,  although  the  trade  or  commerce  in  slaves  might  still 
be  legal  by  the  authority  of  other  states,  yet  it  could  be  main- 
tained only  in  such  parts  of  the  world  as  the  nation  sanctioning 
it  might  have  jurisdiction  over  the  persons  engaged  in  it.  The 
slave-trade  on  and  from  the  coast  of  Africa,  though,  for  this 
reason,  not  supported  by  the  law  of  nations, — in  the  sense  of 
universal  jurisprudence,  at  the  close  of  the  colonial  period,  can- 

'  In  connection  see  ante,  g§  19,  75,  112,  1G8-170. 


392  LAW   OF    NATIONS.      SLAVE-T^IADE 

not  be  said  to  have  been  contrary  to  the  "  law  of  nations  ; " 
eitlier  in  that  sense,  or  in  the  sense  of  a  law  of  which  nations 
are  the  subjects  ;  for,  according  to  the  acknowledged  })rinciple8 
of  that  law,  each  nation  miglit  permit  its  own  subjects  to  engage 
in  the  traffic  on  the  coast  of  Africa.  It  would  have  been  a 
topic  of  public  international  law  only  so  far  as  it  might  have 
been  the  subject  of  an  agreement  between  such  a  slave-trading 
nation,  and  the  sovereign  of  that  part  of  tlie  coast  of  Africa 
from  which  the  negroes  should  have  been  purchased  : — supposing 
that  there  should  have  been  there  any  organized  civil  authority. 
Even  the  forcible  abduction  or  kidnapping  of  the  native  inhab- 
itants by  the  subjects  of  a  civilized  government  might  have 
been  legalized  by  such  government  ;  and  it  would  not  have  been 
contrary  to  international  law,  except  so  far  as  it  violated  the 
rights,  under  the  public  international  law,  of  the  sovereign  to 
whom  the  persons  kidnapped  might  have  been  subject,  if  any 
such  sovereign  could  have  been  found. 

§  329.  An  act  of  criminal  violence  committed  by  private 
persons  upon  the  high  seas,  or  anywhere  beyond  the  territorial 
jurisdiction  of  organized  civil  governments,  is  an  act  punishable 
by  the  tribunals  of  the  sovereign  of  the  persons  committing  the 
injury.  If  such  act  of  violence  is  allowed  or  sanctioned  by  such 
sovereign,  it  then  becomes,  according  to  the  public  international 
law,  an  injury  against  the  sovereign  of  the  persons  injured, — 
supposing  them  to  be  the  subjects  of  an  organized  civil  govern- 
ment ;  the  remedy  for  which  is  beyond  the  jurisdiction  of  courts 
of  justice.  But  a  nation  may  grant  jurisdiction  to  another,  or 
to  all  others,  of  crimes  committed  by  its  own  subjects  ;  and,  by 
the  consent  of  all  European  nations,  it  has  been  agreed  that 
some  acts  of  violence,  by  private  persons,  shall  be  punishable 
not  only  by  the  tribunals  of  their  own  sovereign,  but  by  those 
of  any  nation  which  may  obtain  control  over  their  persons. 
Such  acts  are  therefore  not  merely  contrary  to  the  rule  of  right 
enforced  by  every  nation,  and  therefore  such  as  may  be  said  to 
be  contrary  to  universal  jurisprudence — the  laio  of  nations  ;  but 
they  are  acts  over  which  every  nation  has  jurisdiction,  irrespec- 
tively of  the  national  character  of  the  persons  committing  them. 


NOT    PIRACY    AT    THAT    TIME.  393 

They  arc  therefore  criminal  undei;  the  "  law  of  nations,"  in  a 
pecuhar  sense — the  sense  of  a  law  of  which  private  persons  are 
the  subjects,  and  which  any  nation  may  vindicate  ;  and  which 
is  public  international  law  also  ;  because  the  right  of  thus  vin- 
dicating it,  irrespectively  of  the  national  subjection  of  the  cul- 
prits, is  dependent  upon  the  consent  or  contract  of  different  na- 
tionalities. An  act  of  this  character — one  which  may  thus  be 
punished,  is  technically  called  piracy.  Piracy  may  be  defined 
to  be  one  of  those  acts  which  the  tribunals  of  any  nation  will 
take  jurisdiction  of,  and  will  punish. ' 

Although  the  African  slave-trade  was  no  longer  supported 
by  the  law  of  nations — universal  jurisprudence — at  the  close  of 
the  colonial  period,  it  would  not  have  been  a  criminal  act  on  the 
part  of  the  persons  engaging  in  it,  unless  forbidden  by  the  legis- 
lation of  their  own  sovereign.  And  even  if  so  forbidden,  it 
would  not  have  been  punishable  by  the  courts  of  any  other  na- 
tion as  piracy,  unless  by  the  consent  of  that  sovereign. 

'  There  is  an  ordinary  use  of  the  terms  pirncy,  pirate,  piratical,  in  which  acts  of 
robbery  and  murder  are  discriminated  according  to  the  place  wherein  committed — the 
high  seas.  But  in  the  phrase  "  piracy  by  the  law  of  nations,"  the  designation  has 
reference  to  the  common  jurisdiction  which  nations  will  assume  over  it.  Compare  the 
variety  of  opinion,  on  this  question  of  definition,  in  United  States  v.  Smith,  5  Whea- 
ton,  153. 


CHAPTER  XL 

OF  THE  INVESTITURE  IN  THE  PEOPLE  OF  THE  SEVERAL  STATES 
AND  OF  THE  UNITED  STATES,  OF  THAT  SOVEREIGN  POWER 
WHICH  IS  THE  BASIS  OF  CONDITIONS  OF  FREEDOM  OR  OF 
BONDAGE. 

§  330.  By  the  Revolution  and  the  war  which  was  terminated 
by  the  preliminary  treaty  of  peace  of  November  30,  1783,  the 
English  colonies,  a  portion  of  whose  juridical  history  has  been 
herein  considered,  became  politically  separated  from  the  British 
empire,  and  a  new  sovereignty,^  known  to  the  rest  of  the  world 
as  the  United  States  of  North  America,  became  established 
over  their  territory.  To  the  legislative  or  juridical  action  of  this 
sovereignty  or  sovereignties,  the  subsequent  existence  of  any 
rights  or  obligations  incident  to  freedom  or  liberty  and  its  oppo- 
sites,  regarded  as  the  conditions  or  status  of  private  persons 
within  their  territorial  dominion,  must  be  referred. 

§  331.  Freedom  or  liberty,  taken  even  in  the  widest  or  most 
general  sense — that  of  the  mere  negation  of  restraint,  must 
vary  in  significancy  according  to  the  nature  of  the  subject  of 
which  it  is  predicated,  or  the  capacities  of  that  subject  for  act- 
ing or  being  acted  upon. 

When  freedom  or  liberty  is  attributed  to  a  being  capable  of 
choice  and  action,  and  is  not  taken  as  the  simjile  negation  of  re- 
straint, but  as  a  positive  condition  of  moral  privilege  in  reference 

to  some  rule  of  action,  it  varies  in  its  significancy,  not  only  ac- 

•  • 

'  This  term,  primarily  signifying  supreme  or  sovereign  power  in  the  abstract,  or 
the  possession  of  that  kind  of  power  (Webster's  Diet.),  is  often  used  also,  as  here,  for 
the  concrete, — the  power  and  the  possessor  of  it. 


BASIS   OF    PERSONAL    CONDITIONS.  395 

cording  to  the  object  or  purpose  of  the  rule,  but  also  as  that 
rule  may  vary  in  its  absoluteness  or  necessity,  and  in  its  rela- 
tions to  space  and  time. 

When  the  terms  freedom  and  liberty  or  their  opposites  are 
used  to  express  the  condition  of  a  natural  person,  who  is  a  mem- 
ber of  some  civil  society  or  state,  and  that  condition  is  considered 
apart  from  all  ethical  views  of  its  naturalness  or  inherent  cor- 
respondence with  the  nature  of  man,  and  only  as  consisting  of  a 
variety  of  rights  or  obligations  in  certain  legal  relations  deter- 
mined by  the  positive  law,  based  on  the  authority  of  that  civil 
society  or  state,'  it  cannot  be  described  without  at  the  same 
time  defining  the  law,  which  originated  these  relations,  in  its 
absoluteness  or  necessity,  and  in  its  temporal  and  territorial 
-extent.  * 

When  describing  freedom  and  its  opposites  as  the  effect  of 
the  laws  of  the  United  States,  it  is  therefore  proper  to  consider 
those  laws  in  their  necessity,  authority  and  jurisdiction  ;  as  well 
as  in  their  object,  or  their  direct  effect  upon  personal  condition 
by  the  creation  of  legal  relations. 

These  attributes  of  the  nature  of  law,  which  are  therefore, 
of  necessity,  limitations  of  the  existence  of  freedom  and  its  o^ 
posites,  are  incidents  of  that  'relation  of  superior  and  inferior, 
which  is  an  essential  element  or  constituent  of  a  law  in  the 
primary  sense.*  — n 

§  332.  Since  each  national  sovereignty  is  the  ultimate  or  /^^ 
supreme  authority  for  the  law  of  that  national  domain  in  which 
it  is  supreme,  (in  the  sense  given  to  the  word  laio  in  the  pre- 
vious chapters,)  it  is  not  to  be  considered  as  being  itself  de- 
pendent on  that  law  for  its  existence,  or  its  possession  of  that  A 
supreme  authority  ;  which  possession  can  be  said  to  be  fixed 
and  determined  only  by  those  general  principles  which  are,  in 
fact,  a  law  only  in  the  secondary  sense,  and  constitute  that 
"natural  or  necessary  law  of  jiations"  which  has  been  referred 
to  in^Ehe-ftrsfcEapter.^  ^"ThiT^stence,  or  this  possession  of 
sovereign  power  must  be  assumed  as  rightful  in  every  applica- 

^n<e,  §§  4  -43  ^  Ante,  ^2.  »  Jin/e,  §  49. 


396  BASIS   OF    SOVEREIGNTY. 

tion  of  rules  of  action  which  are  called  its  municipal  or  na- 
tional law. 

The  question  of  the  seat  or  investiture  of  sovereign  power 
can  therefore  be  a  historical  question  only,  or  a  question  of  fact, 
as  that  of  its  nature  and  extent  is  ethical.  These  are  essen- 
tially political,*  and  not  legal  questions.  Or,  although  they 
may  be  called  topics  of  public  law,  it  is  of  law  in  a  sense  ante- 
cedent to  legislation  or  jurisdiction,  which  m  the  manifestation 
of  a  sovereignty,  of  law  in  the  secondary  sense — the  statement 
of  a  mode  of  action. 

§  333.  But  although  the  possession  of  sovereign  power  is 
not  determined  by  the  law,  it  is  the  first  necessity  of  judicial 
action,  in  recognizing  any  precepts  as  law,  to  acknowledge  their 
source  as  being  the  sovereign  or  "  supreme  power  of  the  state  ;  " 
since  the  law  in  asserting  its  authority  claims  its  origin  in  that 
power.  In  this  view  the  political  principle  of  the  seat  of  sov- 
ereignty becomes  also  the  fundamental  "doctrine  of  municipal 
(national)  law. 

The  possession  of  sovereignty  being  a  fact,  and  not  an  effect 
of  law,  whatever  written  memorials  or  declarations  of  the  rijrht- 
^ness  of  any  national  sovereignty  may  exist,  they  can  only 
proceed  from  itself,  and  they  can  only  be  taken  as  historical  evi- 
dences of  its  existence  ;  not  as  law  controlling  that  possession 
of  sovereign  power  which  they  assert.  And  the  authors  of 
those  declarations  must  always  be  supposed  to  have  the  right 
to  substitute  others  of  different  tenor  and^^qual  juridical 
authority.  There  can  therefore  be  no  written  constitution  of 
government  so  authoritative  in  its  nature  or  expression  as  to 
determine  the  rightful  sovereignty — the  rightful  holders  of  that 
rightful  supreme  power  ;  since  before  that  constitution  has  effect 
as  law  it  must  be  recognized  to  be  the  act  of  sovereign  power — 
j    power  above  all  law  in  the  ordinary  sense.* 

§  334.  While  therefore  those  written  instruments  which  are 

'  Luther  v.  Borden,  7  Howard  U.  S.  Rep.  pp.  30,  5 1-58. 

'  De  Maistre,  on  the  Generative  Principle  of  Political  Constitutions,  TransL,  Bos- 
ton, 1847  ;  18mo,  p.  41.  "  The  more  we  examine  the  influence  of  human  agency  in 
the  formation  of  political  constitutions,  the  greater  will  be  our  conviction  that  it  enters 
there  only  in  a  manner  infinitely  subordinate,  or  as  a  simple  instrument ;  and  I  do 


FORCE    OF   CONSTITUTIONS.  397 

known  as  the  Constitutions  of  the  several  States  and  of  the 
United  States,  and  legislative  or  juridical  power  derived  from 
them  are  juristically  assumed  to  be  the  foundation  of  all  legal 
rights  and  obligations  existing  within  the  domain  occupied*  or 
held  by  those  States,  that  assumption  involves  a  previous  politi- 
cal recognition  of  some  existing  sovereignty  or  possession  of 
supreme  power  within  that  dominion,  and  the  conception  of  the 
absoluteness,  necci^ity,  and  temporal  and  territorial  extent  of  the 
positive  law  containelL  in  those  Constitutions,  or  derived  from 
them,  will  depend  upon  the  political  theory  of  the  investiture  of 
that  sovereign  power  from  which  they  proceed.     At  the  same 

not  believe  there  remains  the  least  doubt  of  the  incontestable  truth  of  the  following 
propositions  : 

"  1.  That  the  fundamental  principles  of  political  constitution  exist  before  all  writ- 
ten law. 

"  2.  Tliat  constitutional  law  is,  and  can  only  be,  the  development  or  sanction  of  an 
unwritten  pre-existing  right. 

"  3.  That  which  is  most  essential,  most  intrinsically  constitutional  and  truly  fun- 
damental is  never  written,  and  could  not  be  without  endangering  the  state. 

"  4.  That  the  weakness  and  fragility  of  a  constitution  are  actually  in  direct  pro- 
portion to  the  multiplicity  of  written  constitutional  articles." 

See  also  the  preface  to  the  same  essay,  p.  11. 

The  ideas  of  De  JNIaistre  are  correct  when  the  question  is — what  determines  the 
existence  of  sovereignty,  or  the  investiture  of  sovereign  power  ?  No  written  consti- 
tution can  exist  a  priori,  or  have  an  a  priori  authority.  There  must  have  been  an  ex- 
isting sovereignty  to  originate  sucli  constitution.  The  fallacy  in  his  writings  liesTn 
confounding  law,  in  the  primary  sense,  with  a  mode  of  action  ;  and  law,  in  the  ordi- 
nary sense  or  legislation,  with  poUtical  ethics.  A  similar  fallacy  is  common  with  au- 
thors of  the  extreme  opposite  school.  De  Maistre  says  :  Because  it  is  impossible  to 
establish  a  supreme  government  without  acknowledging  the  existence  of  an  anterior 
sovereign,  therefore  all  actual  sovereignties  are  the  creation  of  the  Deity,  and  arise 
independently  of  man's  agency  :  wliich  may  be  admitted.  But  he  then  asserts  that 
sovereigntj-  can  never  be  in  the  nation  or  people  ;  because,  he  asserts,  the  Deity  has 
never  actually  sanctioned  popular  sovereignty,  but,  always,  monarchical  sovereignty ; 
professing  to  learn  this  from  history :  that  is,  he  asserts  this  as  a  law  in  tlie  secondary 
sense.  But  here  he  assumes  that  he,  or  some  one,  can  determine  the  will  of  the  Deity 
and  interpret  facts  by  it :  for  he  asserts  that  no  actual  possession  of  power  by  the  peo- 
ple has  ever  been  a  legitimate  possession.  But  he  who  could  interpret  facts  by  an  as- 
sumed law  of  the  Deity  would  be  the  only  earthly  sovereign.  De  Maistre  describes 
the  legitimacy  of  monarchy  as  power  above  law,  and  "  legitimate  usurpation,"  that  is, 
the  continued  fact  proves  its  own  lawfulness.  But  the  same  criterion  has  legitimated 
popular  sovereignty  in  America  ;  unless  his  own  standard  of  duration  also  is  to  be  re- 
ceived. ■'  On  nous  cite  I'Amerique  ;  je  ne  conuais  rien  de  si  impatientant  que  les 
louanges  decernes  a  cet  enfant  an  maillot ;  laisser  le  graudir."  By  his  argument  there 
can  be  no  legitimate  sovereignty  in  the  United  States,  nor,  by  consequence,  any  law : 
unless  the  act  of  George  III.  iu  the  treaty  of  peace,  1783,  may  be,  on  his  principles, 
a  legitimate  grant  of  power. 

In  the  same  manner  Tucker,  Paine  and  others  would  prove  that  no  sovereign  power 
can  be  held  except  by  a  compact  of  the  individual  members  of  society ;  and  that  all 
juridical  power  previously  exercised  throughout  the  world,  antecedent  to  the  American 
Revolution,  was  illegitimate  ;  or  that  no  law  existed  before  that  time.  But,  in  fact, 
their  argument  would  equally  prove  that  uo  law,  eveu  now,  exists  iu  the  United  States. 


398  REFERENCE   TO    HISTORY. 

time  the  existence  of  that  sovereignty  is  part  of  the  customary 
or  unwritten  jurisprudence  of  the  land,  whatever  may  have 
been  its  comparative  duration  ;  that  jurisprudence  being  en- 
tirely historical,  as  opposed  to  analytical ;  or,  nothing  else  than 
the  mere  history  of  the  acquisition  and  continued  possession  of 
sovereign  power. 

§  335.  The  events  which  may  be  regarded  as  the  continuous 
act  by  which  these  Constitutions  were  produced,  and  the  words 
and  expressions  which  made  part  of  those  acts  and  of  their 
record,  must  determine  the  existence  of  tliat  sovereignty  which 
has  given  these  Constitutions  their  force.  But  since  the  political 
significance  of  all  events,  not  resulting  from  positive  law,  must 
always  be  liable  to  variety  of  appreciation,  in  view  of  difierent 
doctrines  of  political  expediency,  difierent  political  theories  may 
be  derived  from  those  events,  leading  to  difierent  juristical  views 
of  the  legal  force  and  extent  of  the  provisions  of  these  Consti- 
tutions. For  this  reason  every  historical  narrative  of  these 
events  must  be  liable  to  exception  in  view  of  some  one  of  those 
theories,  or,  to  change  the  form  of  expression,  the  narration  will 
be  also  the  exposition  of  some  of  those  theories. 

^  §  336.  The  nature  of  civil  government  and  of  positive  law 
is  such  that  in  every  state  there  must  be  some  persons  who  ac- 
tually hold,  use  or  enjoy  the  power  or  right  of  the  state  or  of 
civil  society  to  create  coercive  rules  of  action  for  individual 
members  of  the  state,  and  some  whose  legal  liberty  of  action  is 
determined  by  those  rules.* 

'  Austin's  Prov.  Jurisp.,  p.  255.  "  An  independent  political  societj'  is  divisible  into 
t»vo  portions ;  namely,  the  portion  of  its  members  which  is  sovereign  or  snpreme,  and 
the  portion  of  its  members  which  is  merely  subject.  The  sovereignty  can  hardly  re- 
side in  all  the  members  of  society,  for  it  can  hardly  happen  that  some  of  the  members 
shall  not  be  naturally  incompetent  to  exercise  sovereign  powers,"  &c. 

Papers,  &c..  Juridical  Soc,  Vol.  I.  Part  I.,  London,  1855,  p.  30.  On  the  Concep- 
tion of  Sovereignty,  &c.,  by  A.  S.  Maine,  LL.D.  "  First  then,  the  human  superior,  who 
is  to  be  sovereign,  must  be  determinate.  He  need  not  be  a  single  jKrson  or  monarch. 
There  can  be  no  grosser  mistake  than  this,  though  it  is  constantly  perpetrated  by  jurists 
whose  place  of  birth  leads  them  to  associate  "  sovereignty''  with  "despotism,"  and  who 
are  perpetually  committing  themselves  to  propositions  which,  if  construed  rigorously, 
would  either  deny  the  existence  of  governments  like  our  own  and  that  of  the  United 
States,  or  at  all  events  brand  them  with  the  stigma  of  illegitimacy.  Nor  again  can 
"sovereignty"  be  said  to  reside  in  the  entire  community — an  error  the  exact  opposite 
of  the  misapprehension  just  alluded  to,  and  one  to  which  French  writers  on  public  law 
seem  especially  liable.     Their  meaning  may  perhaps  be  that  no  body  of  individuals, 


THE    CONSTITUTING    PEOPLE.  399 

Though  the  word  people^  employed  in  these  Constitutions, 
may,  in  a  certain  ethical  and  political  sense,  be  taken  to  mean 
the  whole  body  of  the  inhabitants  of  certain  districts,  or  an 
aggregate  of  natural  persons  constituting  a  portion  of  civil 
society,  and  each  one  being,  in  some  undetermined  manner, 
represented  in  exercising  sovereignty,'  it  is  yet  evident  that  only 
a  portion  of  the  adult  male  inhabitants  have  in  fact  exercised 
this  supreme  or  sovereign  power  of  constituting  governments 
and  laws.* 

§  337.  There  had  always  been  a  distinguishable  portion  of 
the  individual  inhabitants  of  the  several  colonies,  who,  as  free- 
men or  electors — persons  possessing  an  elective  franchise — had 
always  had  a  basal  or  primary  political  existence,  belonging  to 
them  as  uniting  the  national  character  of  British  subjects  of 
English  birth  or  descent  and  the  local  character  of  corporate 
members  of  a  province  or  a  chartered  colony — a  political  exist- 
ence, underlying  all  forms  of  local  government,  which  had  for- 
merly been  manifested  for  local  municipal  and  colonial  objects 
either  by  direct  political  action  or  through  that  of  elected  repre- 
sentatives, and  the  same  persons  had  always  claimed  a  right  to 
manifest  the  same  for  national  purposes,  whenever  called  upon 
to  fylfil  the  political  duties  of  colonial  members  of  the  British 
nation. 

§  338.  The  colonial  governments  had  been  of  various  consti- 
tution, being  dependent,  in  different  degrees,  on  the  power  of 
the  crown,  according  to  the  terms  of  their  charters,  patents,  or 
other  fundamental  law,  and  all  more  or  less  distinctly  founded 
on  the  basis  claimed  by  the  colonists  of  being  governed,  in  local 

except  the  entirety  of  the  people,  ought  to  be  recognized  as  siiperior  ;  but  a  dogma  like 
this  is  something  very  different  from  the  statement  of  a  fact ;  and  the  truth  is  that  no 
government  corresponding  with  the  description  exists  in  the  world.  All  known  polities 
are  either  monarchies  or  oligarchiis,  since,  even  in  the  most  popular,  women  and  minors 
are  excluded  from  political  functions." 

Compare  Story's  Comm.  §  327,  where  the  author  flatly  conti-adicts  himself;  assum- 
ing it  to  be  a  "  general  principle  that  the  majority  has  at  all  times  a  legal  right  to 
govern  the  minority," — yet  saymg  that  in  fact  it  is  always  a  muiority  which  governs. 

'Bouvier's  Inst,  of  Am.  Law,  vol.  I.  p.  9.  "Abstractedly,  sovcrei>;nty  belongs  to 
the  people  and  resides  essentially  in  the  body  of  the  nation :  but  the  nation,  from 
whom  emanate  all  the  powers,  can  exercise  them  only  by  delcgati(jn." 

"^  So  populus  Komanus  never  signified  all  who  were  called  Romans,  see  Smith's 
Diet.  Antiq.  voc.  Plebes,  Patricii. 


400  THE    CONSTITUTING    PEOPLE. 

matters,  by  laws  to  which  they  had  themselves,  in  their  political 
capacity,  not  individually,  but  as  a  political  integer  or  corporate 
body,  and  by  representation,  assented. 

But,  as  has  been  previously  stated  in  the  third  chapter, 
although  the  colonial  Governments  were  more  or  less  republican 
or  popular  in  their  form,  by  this  recognition  of  a  portion  of  the 
people  or  inhabitants  as  having  a  distinct  public  capacity  and 
character,  yet  the  political  constitution  of  the  colonies  resembled 
that  of  England  in  this — that  the  attributes  of  sovereignty,  not 
held  and  exercised  by  the  central  imperial  Government,  were 
vested  rather  in  a  local  Government,  or  a  political  organization 
holding  legislative,  judicial,  and  executive  powers,  than  in  the 
whole  body  of,  or  in  any  distinct  portion  of,  the  inhabitants 
of  such  colony. ' 

§  339.  Assuming  these  antecedents,  it  may  be  asserted  that 
the  political  change  which  occurred  in  the  events  of  the  Ameri- 
can Revolution,  did  not  consist  in  the  separation  of  the  colonial 
Governments  from  that  of  Great  Britain,  and  in  the  enlargement 
of  their  share  of  sovereign  power  by  the  accretion  to  each  of 
those  before  held,  over  their  several  territory,  by  the  imperial 
Government.  Nor  yet,  upon  the  revolutionary  separation  of  the 
colonies  from  the  British  empire,  at  whatever  point  of  time  that 
is  considered  to  have  taken  place,  did  the  people  or  inhabitants 
of  the  colonial  territory  resolve  into  a  mass  of  natural  persons 
without  civil  organization,  who  by  the  aggregate  of  their  indi- 
vidual authority,  under  some  law  of  nature,  formed  themselves 
into  new  political  communities.*^ 

But  in  the  Revolution  these  Governments  became  themselves 
essentially  changed,  so  far  as  they  had  not  been  the  instruments 
of  the  political  action  of  that  portion  of  the  inhabitants,  wliile 
the  political  existence  of  that  portion  continued  without  change; 
and  they  thereafter  determined  for  themselves,  either  expressly 
or  by  implication,  the  fundamental  or  supreme  public  law  of  the 
territory  they  occupied  ;  that  is  to  say,  all  public  law  subordinate 

'  Ante,  §  131. 

'  1  Curtis'  Hist,  of  Cons.  p.  16 ;  Calhoun's  Essay,  1  Works,  190 ;  Paley's  Moral 
and  Pol.  Phi.,  B.  "VI.  c.  3.  There  was  no  illustration  of  the  "  social  •compact "  doc- 
trine as  some  have  imagined ;  comp.  1  Tuckers  BL  App.  p.  1-9. 


ORGANS  OF  THE  REVOLUTION.  401 

to  tlie  fact  of  their  possession  of  power,  which  was  founded  on 
revokition — the  exercise  of  autonomic  force,  and  was  a  law  in 
Jhe^secondary  sense  only. 

340.  The  several  acts  composing  the  Kevolution  proceeded 
from  bodies  of  various  political  character  and  authority,  being 
partly  the  acts  of  legislative  assemblies  representing  the  popu- 
lar element  under  the  old  local  Governments,  and  partly  of 
bodies  entirely  revolutionary  in  their  origin  and  purpose,  deriv- 
ing their  authority  from  the  choice  and  sanction  of  local  majori- 
ties among  the  electors  of  districts  varying  very  much  in  geo- 
graphical extent  and  political  importance,  as  compared  with 
the  entire  colonial  district  of  which  they  formed  a  part.  ^  The 
individuals  who,  in  the  beginning  of  the  Kevolution,  visibly  ex- 
ercised powers  not  held  by  the  colonial  Grovernments,  under  the 
previous  order  of  things,  or  powers  incompatible  with  the  main- 
tenance of  that  order,  may  have  been  members  of  those  Grov- 
ernments at  the  time,  and  may  thus  have  represented  separate 
colonial  polities,  or  what  had  been  such  under  the  public  law 
of  the  empire.  But  by  the  revolutionary  action  they  must  have 
lost  whatever  in  that  political  character  represented  the  power 
of  the  crown,  or  the  imperial  authority,  exercised  in  and  for  a 
distinct  province  or  colony.  So  far  as  they  had  a^  pohtical 
character  derived  from  the  previously  recognized  local^emeilt 
of  sovereignty,  they  may  still  have  claimed  to  represent  a  dis- 
tinct polity,  replacing,  or  succeeding  to  the  provincial.  But 
they  could  not  have  had,  from  that  previous  political  character, 
the  capacity  to  exercise  powers  which  had  not  before  been  held 
by  them  in  virtue  of  that  local  element  of  sovereignty,  under 
the  public  law  of  the  united  empire.  They  could  not,  by  virtue 
of  their  previous  character  of  representatives  of  the  local  colo- 
nial authority,  assume  to  hold  powers  which  were,  before,  cus- 
tomarily invested  in  the  central  imperial  Government. 

To  whatever  degree  they  may  have  done  so,  it  was  as  the 
agents  of  the  freemen,  or  possessors  of  the  elective  franchise,  who 

'  Graham**  Hist,  of  U.  S.,  vol.  3,  p.  374,  &c.  G.  T.  Curtis'  Hist,  of  Const,  of  U. 
S.,  vol.  I.,  p.  7,  and  South.  Quart.  Rev.,  Jan.  1855,  p.  177-180,  Life  of  Elbridge 
Gerry,  vol.  L,  ch.  4,  5. 

26 


402  POLITICAL    PEOPLE    OF    THE    STATES. 

now  assumed  supreme  powers  as  original  in  themselves,  acting 
in  their  corporate  capacity  of  the  political  people  of  States  suc- 
ceeding to  the  political  people  of  colonies.  It  was  this  portion 
of  the  people,  in  their  primary  form  of  organization  as  the  po- 
litical people  of  the  several  States  and  (by  revolution)  of  a 
national  state,  who  exercised  sovereign  power  for  national  and 
local  purposes,  being  the  same  individuals  who  had  before  exer- 
cised political  powers  and  rights  in  the  government  of  a  town- 
shii)  or  county,  and  shared  by  representation  in  the  colonial 
government ;  their  numbers,  in  each  new  State,  in  proportion 
to  the  whole  number  of  the  inhabitants,  depending  on  previous 
usage  and  existing  laws.  In  those  colonies  where  the  local 
Governments  had  been  more  immediately  derived  from  a  politi- 
cal people,  or  portion  of  the  inhabitants  thus  exercising  political 
power,  and  which  were  even  then  distinguished  as  popular ,  the 
forms  of  their  colonial  chartered  polity  were  continued.  In 
other  colonies,  old  forms  of  government  more  visibly  gave  way 
to  the  assumption  of  sovereignty  by  the  people.  But  the  po- 
litical corporeity  of  the  people,  as  it  had  existed  in  the  colonial 
(state  and  had  there  been  manifested,  continued'  in  the  exist- 
ence of  the  political  people  of  one  of  the  United  States,  there- 
after exercising,  under  new  forms  of  representation,  independent 
and  supreme  powers  ;  severally,  in  their  particular  colonial  lim- 
its, for  State  purposes  ;  and  for  national  purposes,  in  union  with 
the  political  people  of  the  other  revolted  provinces.' 

'  Therefore  the  citizens  of  Mecklenburg  County,  North  Carolina,  did  not  become, 
on  the  19th  of  May,  1775,  what  they  declared  themselves  to  be,  when  they  resolved 
"  that  we  do  hereby  declare  ovirselves  a  free  and  independent  people,  are,  and  of  right 
ought  to  be,  a  self-governing  association,  under  the  control  of  no  power  other  than 
that  of  our  God  and  the  General  Government  of  the  Congress ;  to  the  maintenance  of 
which  independence  we  solemnly  pledge  to  each  other  our  mutual  co-operation,  our 
lives,  our  fortunes  and  our  most  sacred  honor." — And  resolved,  "  that  as  we  now  ac- 
knowledge the  existence  and  control  of  no  law  or  legal  oflacers,  civil  or  military,  with- 
in this  country,  we  do  hereby  ordain  and  adopt,"  (tc.     See  ante,  laws  of  N.  C,  p.  296. 

»  By  resolution  of  the  General  Congress,  May  10  and  15,  1776,  "That  it  be  re- 
commended to  the  respective  assemblies  and  conventions  of  the  United  States,  where 
no  government  suiEcient  to  the  exigencies  of  their  affairs  has  been  hitherto  ©otablished, 
to  adopt  such  government  as  shall,  in  the  opinion  of  the  represerUaiives  <^  the  people^ 
best  conduce  to  the  happiness  and  safety  of  their  constituents  in  particular  and  America 
in  general."  The  Congress  of  the  colony  of  New  York,  by  resolution,  May  31,  1777, 
expressed  doubts  of  their  powers  in  this  respect,  and  that  "  it  appertains  of  right  sole- 
ly to  the  people  of  this  colony  to  determine  said  doubts."  (  1  R.  S.  of  N.  Y.,  p.  21, 
Prefatory  to  the  first  State  Const.)    Mr.  Hildreth,  vol  EQ.,  Hist,  of  U.  S.,  p.  375, 


NATIONAL    AND    LOCAL    SOVEREIGNTY.  403 

§  341.  This  change  of  the  possession  and  investiture  of 
sovereign  power  was  manifested  by  the  united  and  several  con- 
stitution of  new  organs  of  government,  and  the  investiture  and 
distribution  of  political  powers,  for  several  and  united  action,  in 
and  among  such  organs.  It  did  not  and  could  not,  as  to  either 
sphere  of  action,  take  place  by  a  perfectly  simultaneous  or  har- 
monious movement  on  the  part  of  the  political  peojile  of  all  the 
colonies  at  once,  or  through  like  instrumentalities  in  each.  There 
may,  however,  be  less  difficulty  in  distinguishing  the  assump- 
tion of  some  of  the  powers  of  sovereignty  for  national  purposes, 
and  the  united  exercise  of  them  by  the  peoj)le  of  the  new  States, 
than  in  distinguishing  the  several  assumption  by  the  people  of 
those  States,  of  powers  used  for  local  or  State  purposes. 

In  some  of  the  colonies  the  powers  of  sovereignty  fonnerly 
exercised  by  the  colonial  Governments  could  hardly  be  recog- 
nized as  transferred  to  the  political  people  of  the  new  State, 
until  after  other  sovereign  powers,  of  a  more  national  and  ex- 
ternal character,  had  been  claimed  and  exercised  by  the  same 
people  as  part  of  the  people  of  the  united  colonies  assuming  a 
national  character.'      ^ 

§  342.  The  American  colonies,  though  under  separate  colo- 
nial Governments,  each  of  which  exercised  or  claimed  some  sov- 
ereign powers  within  their  respective  territories,  or  which  shared 
with  the  imperial  Government  the  possession  and  exercise  of  all 
sovereign  powers  within  such  territories,  were,  equally  with  the 
British  islands,  part  of  one  and  the  same  empire ;  and,  as  to  each 
other,  were  of  one  nation,  over  which  the  residue  of  sovereign 
and  national  power,  beyond  that  vested  in  the  local  Govern- 
ments, was  exercised  in  a  single  and  undivided  manner. 

Their  separation  from  the  rest  of  that  empire  was  a  single 
political  result,  eflfected  by  the  combined  action  of  the  political 


says,  after  sketching  the  formation  of  State  governments  at  this  time,  "for  all  practi- 
cal purposes — even  to  the  extent  of  alterations  of  the  constitution,  except  in  a  few 
States,  where  difTerent  provisions  were  made — the  sovereign  power  was  vested  in  the 
respective  State  Legislatures,  which,  &c."  This  view  is  not  generally  adopted  by  ju- 
rists, unless  of  the  southern  State-rights  school.  Comp.  South.  Quar.  Rev.,  April, 
1853 ;  review  of  Calhoun's  Essay,  p.  398. 

'  Compare  the  facts  stated  in  3  Hildr.,  374,  Pitkin's  Hist  of  U.  S.  c.  6,  7. 


404  ORIGIN   or    A   NATIONAL   EXISTENCE 

people  of  the  several  colonies,  manifesting  an  integral  sover- 
eignty by  the  assumption  of  that  power  dver  their  united  terri- 
tories which  had  formerly  been  held  over  the  same  by  the  cro^Vn 
.  and  parliament  of  England.    So  that  while  the  attributes  of  sov- 
'   ereignty  which  had  been  severally  exercised  by  the  colonial  Gov- 
■kvO*     I  srnments  were  continued  in  the  several  possession  of  the  people 
,  '    *  of  the  States,  and  were  increased  by  the  several  assumption  of 
^   .  \  other  powers,  the  same  political  people,  by  a  joint  assumption 
vv»    *    *  of  other  powers — the  residue  of  sovereignty — and  their  exercise 
..•^^    .  in  a  national  character,  for  internal  and  external  relations,  pre- 
I  sented  themselves  and  all  other  inhabitants  of  the  country  as 
one   people   and   a   sovereign   nation    among   other    sovereign 
nations. ' 

§  343.  Since  the  individuals  constituting  the  peoi)le,  (as 
above  discriminated  from  the  mass  of  the  inhabitants,)  had  never 
exercised  political  rights  except  as  already  organized  into  politi- 
cal bodies  preexisting  under  the  colonial  condition,  they  could 
never  have  acted  in  union  for  national  purposes  except  as  _so 
primarily  organized.  They  could  not  have  established  any  gen- 
eral government  without  acting  in  the  only  form  of  poUtical 
existence  they  had  had  ;  unless  all  forms  of  political  organiza- 
tion had  been  dissolved.  For  the  political  capacity  of  no  single 
individual  or  natural  person  was  inherent  or  ;^)rimordial  in  him- 
self, but  derived  from  the  existence  of  the  colonial  corporate 
body  ;  and  it  was  only  these  corporate  bodies  which  now,  by 
the  revolution,  acquired  a  primordial  existence,  and  held  sover- 
eign power  by  right  of  fact — right  above  law.'  . 

Of  necessity,  therefore,  the  people  of  the  United  States,  in 
combining  together  for  the  exercise  of  sovereign  power  for  na- 
tional purposes,  have  not  acted  as  a  homogeneous  body  of  indi- 
viduals, but  as  organized,  for  the  purpose  of  such  action,  into 
primary  political  unities  identical  with  those  in  which  they  have 
exercised  the  residue  of  sovereign  powers  severally,  for  the  pur- 
poses of  a  State  government. 

'  1  Kent's  Coram.,  page  201 ; — "  The  association  of  the  American  people  into  one 
body  politic  took  place  while  they  were  colonies  of  the  British  Empire,  and  owed 
allegiance  to  the  British  crown." 

'  De  TocqueviUe,  Democ.  in  Am.,  vol  1.,  ch.  5,  (p.  51,)  supposes  that  the  people 


MAJORITY  RULE,  HOW  INAPPLICABLE.         405 

§  344.  Where,  under  positive  law,  a  number  of  persons  to- 
getlier  constitute  a  corporate  body  and  where  all,  in  determining 
the  action  of  that  body,  have,  by  law,  equal  powers,  the  legal 
principle  obtains  that  the  body  acts  by  the  will  of  the  majority, 
or,  that  the  will  of  the  majority  is  the  will  of  the  corporate 
body.'  But  it  is  necessarily  assumed  that  the  people  known  as 
the  people  of  the  United  States  have  a  primordial  existence  as 
the  people  of  the  several  States,  and  that,  so  corporately  organized, 
they  possess  all  their  powers  by  right  above  law,  or  by  law  in 
the  secondary  sense  only — the  statement  of  the  fact.  The  mode 
in  which  they  hold  or  can  exercise  sovereign  power  is  known 
only  by  its  actual  exercise.  Therefore,  to  maintain  the  doctrine 
that  the  people  of  the  United  States  have  a  corporate  existence 
or  a  corporate  possession  of  sovereign  power  for  the  purposes  of 
an  integral  national  existence,  it  is  not  necessaiy  to  assume 
that  the  action  of  that  corporate  body  has  been  or  would  be  de- 
termined by  the  will  of  the  majority  of  the  States  :  or  that  the 
principle  of  action  by  majority  is  an  element  of  their  corporate 
existence.  And  the  fact  that  this  national  power  was  exer- 
cised by  the  concurrent  action  of  the  people  of  all  the  States, 
and  not  by  the  action  of  the  people  of  a  majority  of  the  States, 
does  not  indicate  that  the  exercise  of  this  power  was  the  result 
of  a  federal  union  of  the  people  of  all  the  States,  each  holding 
the  sum  of  sovereign  power  in  severalty.*  Though,  iu  fact,  the 
revolutionary  assumption  of  sovereignty  over  their  united  terri- 
tory was  a  unanimous  act,  and  though  the  corporate  people  of 
each  State  acted  for  that  purpose  freely  and  without  compulsion 
from  a  majority,  the  sovereignty  so  ^ercised  may  still  have 
been  held  by  them  'as  the  constituejit  parts  of  an  integral  na- 
tion, and  not  in  severalty.     And  it  is  impossible  to  say  how 


or  freemen  of  each  tmcnuhip  constitute  collectively  the  primordial  political  integer, 
and  that  its  existence  is  independent  of  the  collective  people  of  the  State.  There  is 
much  in  the  early  history  of  the  N.  E.  colonies  to  justifj'  this  idea.^  But,  since  the 
revolution,  there  can  be  no  doubt  that  in  each  State  sovereignty  is  vested  in  the  whole 
body  of  electors. 

*  Refertur  ad  universos  quod  publice  fit  per  majorem  partem  (Ulpian.)  The  public 
act  of  the  majority  is  the  act  of  all. 

»  As  is  argued  in  Federalist  No.  39  by  Madison ;  and  1  Tucker's  Blackstone,  App., 
p.  146:  1  Calhoim's  W.,  p.  150,  151 ;  Baldwin's  Const.  Views,  pp.  18-25. 


^. 


406  MANIFESTATION    OF    NATIONALITY. 

that  national  power  would  have  been  exercised  or  manifested  if 
any  State  or  minority  of  States  had  refused  to  co-operate  with 
the  majority,  in  the  assumption  of  national  power,' 

§  345.  The  delegates  in  the  Kevolutionary  General  Congress 
which  July  4th,  1776,  "in  the  name  and  by  the  authority  of 
the  good  peojjle  of  these  colonies,"  declared  the  "  united  colo- 
nies "  to  be  "  free  and  independent  States,"  received  their 
powers  under  electoral  agencies  diflfering  greatly  in  their  con- 
nection with  the  people  whom  they  assumed  to  represent.* 

In  or  by  the  Confederation,  the  integral  people  of  the  United 
States  exercised  national  power  by  the  intervention  of  the  same 
organs  of  government  which  they  employed  in  their  local  or 
State  Governments.^ 

In  or  by  the  Constitution,  the  same  people,  without  a  revo- 
lution, without  any  shifting  of  the  seat  of  sovereign  power,^ — 
exercised  national  power  by  a  Government  instituted  by  the 
direct  action  of  the  people  of  each  State.^ 

This  nationality  or  integrity  of  the  people  of  the  United 
States,  coexistent  with  a  separate  possession  and  exercise  of 
sovereignty  for  local  or  State   purposes,  has  continued   in  a 

'  Significant,  in  illustrating  the  abnonnal  condition  of  the  revolted  colonies,  are 
the  proceedings  in  the  General  Congress  relative  to  the  Parish  of  St.  John's  in  Georgia, 
which  sent  a  delegate  three  months  before  any  were  sent  to  represent  that  colony. 
Journals  of  the  first  Congress,  May  13,  15,  27,  1775 ;  and  then-  reception  of  the  Meck- 
lenburg Declaration. 

'  1  Curtis'  Hist,  of  Cons.,  p.  13,  note. 

^  The  same,  p.  245.     1  Kent's  Com.  208 ;  Joum.  Cong.  May,  1775,  p.  09-74. 

*  An  opposite  doctrine  has  the  authority  of  the  opinion  of  the  court  in  Dred  Scott's 
case,  19  Howard,  441 :  "  The  new  government  was  not  a  mere  change  in  a  dynasty, 
or  in  a  form  of  government,  leaving  the  nation  or  sovereignty  the  same,  and  clothed 
with  all  the  rights,  and  bound  by  all  the  obligations  of  the  preceding  one.  But  when 
the  present  United  States  came  mto  existence  under  the  new  Government,  it  was  a  new 
political  body,  a  new  nation,  then  for  the  first  time  taking  its  place  in  the  family  of 
nations.  It  took  nothing  by  succession  fi-om  the  Contederation.  It  had  no  right,  as 
its  successor,  to  any  property  or  rights  of  property  which^  it  had  acquired,  and  was 
not  liable  for  any  of  its  obligations.  It  was  evidently  viewed  in  this  light  by  the 
framers  of  the  Constitution." 

5  Federalist,  No.  39,  McCulloch  vs.  Maryland,  4  \Vhea.t.  R.,  314.  1  Curtis'  Hist, 
of  the  Const.,  p,  373.  Resolution  of  the  Congress  of  the  Confederation,  28  Sept.,  1787, 
that  the  report  of  a  cou.stitution  for  the  people  of  the  United  States  made  by  the  con- 
vention "  with  the  resolutions  and  letter  accompanying  the  same,  be  transmitted  to 
the  several  legislatures  in  order  to  be  submitted  to  a  convention  of  delegates  chosen 
in  each  state  by  the  people  thereof,  in  conformity  to  the  resolves  of  the  convention 
made  and  provided  in  that  case."  And  resolution  of  Sept.  13,  1788,  reciting  the  above 
and  declaring  the  constitution  to  have  been  ratified  accordingly.  Journals  of  Con- 
gress and  1  Rev.  Stat,  of  New  York,  p.  17. 


NATIONAL    AND    STATE    SOVEREiaNTY.  407 

manner  and  form  more  or  less  distinctly  recognized,  from  tlie 
period  of  the  separation  of  the  colonies  from  the  mother  country 
to  the  present ; '  and  no  former  colony,  nor  any  State,  nor  the 
people  of  such,  has  appeared  in  international  action  with  foreign 
states,  or  in  intercourse  with  the  other  colonies  or  States,  as  using 
severally  all  the  powers  inherent  in  sovereignty  ;  while  they 
have  each,  that  is,  the  people  of  each,  used  or  held  some  of  those 
powers  independently  and  without  claim  of  control  from  each 
other  or  any  majority  of  the  whole.' 

§  346.  If  the  language  of  the  Constitution  does  not  base  its 
authority  upon  or  recognize  any  other  theory,  and  if  for  aught 
that  appears  from  it,  independent  of  theory,  it  may  be  merely 
declaratory  or  constituting,  not  granting,  giving,  or  conveying, 
(except  in  the  institution  of  a  subordinate  Government,^)  and  if 
the  facts  which  led  to  the  actual  customary  recognition  of  the 
written  Constitution  do  not  contradict  the  view,^   it  may  be 

'  1  Kent's  Comm.  (6th  ed.)  217,  note  citing  authorities. 

In  the  second  Article  of  Confederation  it  was  declared,  "  Each  State  retains  its  sov- 
ereignty, freedom,  and  independence,  and  every  power,  jurisdiction,  and  right  which 
is  not  by  this  confederation  expressly  delegated  to  the  United  States  in  Congress  as- 
sembled." This  is  urged  as  proving  each  State  to  have  been  possessed  of  integral 
national  sovereignty,  (1  Calhoun's  W.  p.  nS','l49.)  But  since  no  declaration  of  sov- 
ereignly "cTin  be  more  than  evidence,  it  may,  as  such,  be  compared  with  other  testimony. 
So,  too,  the  declaration  of  July  4th  asserted  the  colonies  to  be  free  and  independent 
States.  But  declaring  a  state  of  things,  does  not  make  it.  The  question  still  is,  hoio 
did  these  States  hold  sovereign  power  ?  The  accompanying  declarations  of  an  existin* 
state  or  condition  of  private  persons,  "  that  all  men  are  created  equal,"  Sec,  and  have 
"unalienable  rights,"  did  not  determine  any  private  conditions,  even  though  the  state 
of  private  persons  is  the  efifect,  and  not,  like  sovereignty,  the  cause  of  law. 

"  Any  adequate  reference  to  the  authorities  from  which  this  historical  summary  is 
supposed  to  be  derived  would  occupy  a  disproportionate  space,  and  if  attempted, 
would,  probably,  be  unsatisfactory,  since  all  the  written  histories  of  this  period  are 
viewed  with  various  degrees  of  deference  by  persons  differing  in  political  sentiment. 
Pitkin's  History  of  the  United  States  presents  the  leading  events  in  a  simple  form  of 
narration,  yet  with  special  reference  to  their  bearing  on  the  political  or  pubUc  law  of 
the  Union.  Chapters  vi,  vii,  xi,  and  xix  of  that  work  may  be  noted  as  relatmg  to  the 
period  here  referred  to. 

^  Throughout  the  six  Articles  of  the  Constitution  the  people  of  the  U.  S.  grant 
powers  to  different  departments  of  a  Government,  and  being  granted  as  separate  func- 
tions of  government,  the  Government  holds  those  powers  under  a  law.  The  only  in- 
stance in  which  an  assignment  of  powers  to  the  United  States  is  spoken  of,  is  in  the 
tenth  Amendment,  where  it  is  called  a  delegation.  "  The  powers  not  delegated  to  the 
United  States  by  the  Constitution,"  &c.  This  is,  in  fact,  a  discrepancy  with  the  main 
instrument,  and  should  be  construed  to  harmonize  with  it,  not  to  alter  it ;  no  powers 
being  therein  granted  or  delegated  to  the  U.  S.,  but  to  the  Government;  the  U.  S.,  the 
people  of  the  U.  S.,  being  the  granting  or  delegating  party.  Comp.  1  Callioun's  W. 
p.  240. 

*  Compare  the  summaries  of  the  facts  in  Calhoun's  Essay,  1  Works,  188-lt)0,  and 
in  1  Story's  Comm.  §  109-115. 


408  THEORY    OF    DISTRIBUTED    SOVEREIGNTY. 

justly  regarded  as  the  necessary  and  only  doctrine  oilaiu,  under 
the  instrument,  that  the  powers  assigned  by  it  to  the  Govern- 
ment of  the  United  States  arc  equally  original  and  sovereign  in 
the  hands  of  a  political  unity,  called  the  people  of  the  United 
States,  as  the  sovereign  powers  not  so  granted  and  not  prohibited 
to  the  several  States  are  original  in  the  possession  of  the  people 
of  the  several  States  ;  that  is,  the  Constitution,  as  a  political  fact,  is 
evidence  of  the  investiture  of  certain  sovereign  national  powers  / 
in  the  united  peojde  of  the  States,  antecedent  to  the  Constitu- 
tion, as  well  as  of  the  residue  of  sovereignty  in  the  same  people 
in  their  several  condition  of  the  people  of  distinct  States,  It 
being  here  taken  as  a  principle,  independent  of  the  Constitution, 
that  sovereignty  is  not  necessarily,  in  theory  or  practically,  con- 
centrated in  one  locality  :  its  place  being  determined,  as  any 
other  fact,  from  historical  evidence.* 

This  will  hereinafter  be  assumed  as  the  obvious  legal  doctrine 
on  this  point  ;  wherever,  in  the  absence  of  judicial  decisions,  it 
becomes  necessary  to  refer  to  any  such  theory  for  the  construc- 
tion of  the  instrument. 

And  in  accordance  with  this  view,  the  term  national  Gov- 
ernment will  be  used  as  a  proper  designation  for  the  Government 
established  by  this  Constitution.'' 

'  Compare  on  this  point  the  remarks  in  the  beginning  of  ch.  vii.  Judge  Wilson, 
(one  of  the  signers  of  the  Declaralion  of  Independence,)  in  Chisholm  v.  Georgia,  2 
Dallas,  p.  41!).  Judge  Paterson,  (one  of  the  framcrs  of  the  Constitution,)  in  Talbot  v. 
Janson,  3  Dallas,  p.  I'l-t,  speaking  of  "  sovereignties  in  a  sovereignty.''  Mr.  Grimke, 
in  State  v.  Hunt,  2  Hill's  So.  Car.  U.  p.  39,  spoke  of  divided  sovereignty  as  having  been 
exemplified  in  the  feudal  instit\itions  of  Europe.  Other  counsel  in  that  case,  see 
p.  97,  .spoke  of  it  as  an  impossibility. 

"  Mr.  Calhoun,  1  Works,  pp.  114,  118,  admits  that  the  use  of  the  term,  as  distin- 
guished from  fulevnl  or  general,  has  become  prevalent.  And,  in  harmony  with  this 
view,  the  word  l:<tatfi,  when  applied  to  a  member  of  the  American  Union,  is  herein 
coumienced  witli  the  capital  letter,  as  being  a  proper  noun,  and  thus  intended  to  be 
distinguished  from  atati',  the  common  noun.  The  States,  united  and  several,  constitute 
a  state ;  but  the  individual  States  are  not  states.  This  view  is  at  least  consistent  with 
much  of  earlier  juristical  opinion.  See  Martin  v.  Hunter,  1  Wheaton,  304,  323,  352  ; 
and  the  greater  part  of  that  referred  to,  as  presenting  the  true  doctrine,  in  Story's 
Conim.  B.  iii.  ch.  3 ;  aud,  as  presenting  the  false  doctrine,  in  Baldwin's  Const  Views, 
pp.  13-17. 

It  will  not  be  here  attempted  to  state  any  other  theory  as  being,  in  all  points, 
supported  by  this  or  that  publicist.  The  bulk  of  juristical  authority  is  unquestionably 
in  favor  of  the  doctrine  that  at  the  Revolution  the  States  became  each  a  .several  and 
individual  political  state,  nationality,  or  complete  sovereigntv.  Compare  3  Dallas,  199  ; 
4  Cranch,  212;  19  Howard,  502;  Life  of  Elbr.  Gerrj".  vol.  i.  p.  139;  Sim.s'  case,  7 
Gushing,  p.  275,  317;  see  also,  Gibbons  v.  Ogdeu,  9  Wheatoii's  R.  187;  1  Tucker's 


TERRITORIAL    JURISDICTION.  409 

§  347.  The  geograpliical  dominion  of  any  possessor  of  sov- 
ereign power,  is,  in  jurisprudence,  determined  in  the  same 
manner  as  the  seat  or  investiture  of  that  power  ;  that  is,  by  the 
actual  exercise  of  that  power,  in  reference  to  certain  territory. 
The  exercise  of  such  power  being  essential  to  the  existence  of 
law,  regarded  as  the  rule  proceeding  from  the  holder  of  that 
power,  its  legitimacy  is  a  political  question  and  not  a  legal  one. 


Blackstone,  App.  passim;  1  Calhoun's  W.  p.  190;  Baldwin's  Const.  Views,  pp.  75-81. 
In  connection  with  this  doctrine,  it  is  maintained  by  some,  that,  by  the  adoption  of 
the  Constitution  a  perpetual  grant,  cession,  or  absolute  transfer  of  a  portion!of  the  sov- 
ereign powers  of  each  State  was  made,  and  that  the  powers  now  held  by  the  Govern- 
ment of  the  U.  S.  are  possessed,  as  of  inherent  right,  either  by  that  Government  or  by 
the  people  of  the  U.  S.  regarded  as  one  pohtical  body ;  the  residue  of  power  being 
held  by  each  State  severally,  and  as  before.  Apparently  so  in  Dred  Scott's  case,  19 
Howard's  R.  441,  opinion  of  the  court ;  see  also,  1  Curtis'  Hist,  of  the  Const.  331. 

Under  another  theory,  the  States  or  the  people  of  the  several  States  are  regarded 
as  still  continuing  individuallj'  sovereign  states  in  the  fullest  sense  ;  and  as  continu- 
ously and  presently  delegatmg  a  portion  of  the  sovereign  power,  still  inherently  pos- 
sessed by  them,  to  a  jointly  deputed  government  adapted  to  certain  common  interests 
and  objects.  Under  this  theory  the  Constitution  is  regarded  as  the  written  evidence  of 
a  treaty,  compact,  contract,  league,  federative  imion,  <fec.,  between  sovereigns  each 
severally  having  power  to  judge  of  the  nature  and  obligation  of  that  contract,  and  to 
terminate  its  dm-ation  and  eflfect  upon  itself  according  to  its  several  autonomic  judg- 
ment ;  limited  only  by  such  principles  as  may  limit  the  action  of  all  sovereign  states 
or  nations.  See,  especially,  Calhoun's  Works,  voL  i.  p.  161,  iii.  149.  Resolutions  and 
Speech  in  Senate,  P'eb.  2(5,  1833,  in  vol.  ii.  262,  and  in  the  same  vol.  p.  34 ;  Report  of 
Committee  in  S.  C.  Convention,  Nov.  24,  1832.     Baldwin's  Const.  Views,  jMisim. 

This  theory  of  a  league  or  federative  union  may  have  modifications,  under  different 
views  of  the  nature  or  obligation  of  the  contract  and  grant ;  all,  with  greater  or  less 
consistency,  agreeing  in  ultimately  placing  an  entire  national  sovereignty  in  the 
people  of  each  State,  severally.  Compare  debate  in  U.  S.  Senate  on  INIr.  Foot's  reso- 
lution, in  1830  ;  4  EUiott's  Debates,  p.  315-330 ;  3  Webster's  Works,  p.  248,  270 ; 
Story's  Comm.  §321  and  the  references;  De  Tocqueville's  Democracy,  &c.,  parti, 
ch.  viii. ;  1  Tucker's  Bl.  Comm.  App.  pp.  65,  175,  187. 

Another  theory,  the  extreme  opposite  of  that  last  stated,  appears  to  have  had  its 
advocates.  This  regards  the  United  States  or  the  people  of  the  United  States,  as  a 
pre-existing  political  unity,  independently  of  the  Constitution,  holding  the  entirety  of 
ultimate  sovereign  power,  and  supposes  the  States  or  the  several  ijeople  of  those  States 
to  hold  their  several  powers  by  the  will  or  consent  of  the  whole  people  or  nation,  or 
by  public  law  emanating  from  that  integral  possessor  of  undivided  sovereign  power, 
and  expressed  in  the  Constitution.  See  Dane's  Abridgment,  §  2,  p.  10,  &c.  Judge 
Story,  citing  this  authority,  seems  to  Lave  inclined  to  the  same  view,  though  content- 
ing himself  with  opposing  the  doctrine  that  the  States  are  severally  sovereign ;  Story's 
Comm.  B.  IH.  c.  3,  and  the  cojjious  references  to  leading  opinions. 

These  two  theories  have  this  point  of  resemblance,  tliat  the  present  'location  of 
the  ultimate  sovereignty  is,  by  each,  considered  the  same  which  had  existed  from  the 
first  moment  of  separation  from  Great  Britani,  viz.,  originally,  and  now,  ultimately, 
in  the  nation  ;  or  originally,  and  now,  ultimately,  in  the  States  severally.  (1  Cal- 
houn's Works,  162-165,  calling  the  Constitution  a  change  of  organization  only.) 

Further,  these  two  theories  would  be  equally  supported  by  the  doctrine  assumed 
by  many  as  an  axiom,  that  sovereign  power,  to  be  such,  must  of  necessity  be  ulti- 
mately found  concentrated  or  centralized  in  some  one  political  unity ;  either  a  single 
person,  or  a  collection  of  persons  acting  as  one.     (1  Calhoun's  Works,  p.  122,  140.) 


410  EXTENT    OF    TERRITORIAL    DOMINION. 

except  in  connection  with  public  international  law,  which  is 
law  only  in  an  imperfect  sense.' 

The  colonies  which  formed  the  States  of  the  American  republic 
at  the  period  of  separation  from  the  British  empire  were  thirteen ; 
viz.,  Virginia,  Maiyland,  Massachusetts,  New  Hampsliire,  Con- 
necticut, Rhode  Island,  New  York,  New  Jersey,  Pennsylvania, 
Delaware,  North  and  South  Carolina,  and  Georgia.  At  that 
period  the  boundaries  of  some  of  these  States  under  their  colo- 
nial patents  and  charters  were  unsettled,  and  the  claims  under 
the  patents,  in  many  instances,  conflicting.  Under  the  political 
relations  of  the  States  bearing  these  names,  these  claims  have 
been  adjusted  and  their  boundaries  settled  as  they  are  at  pre- 
sent. Portions  of -Virginia,  New  York,  and  Massachusetts  have, 
with  the  consent  of  those  States  and  of  the  national  government, 
been  organized  as  the  several  States,  Kentucky,  Vermont,  and 
Maine  ;  with  like  investiture  in  the  political  people  of  each  as  in 
the  people  of.  the  other  States,  of  a  several  possession  of  sov- 
ereign powers  for  local  or  State  purposes,  and  of  other  sovereign 
powers  in  common  with  the  people  of  the  original  States  for  na- 
tional purposes.  The  remainder  of  territory  not  included  within 
the  present  limits  of  the  claimant  States  was  ceded  by  them  to 
the  United  States  or  the  people  thereof,  with  all  rights  of  sov- 
ereignty over  the  same,  though  in  certain  cases  with  stipidations, 
the  effect  of  which  will  be  hereafter  noticed.  This  territory 
consisted  of  all  that  district  west  of  the  thirteen  original  States, 
and,  exclusive  of  Kentucky,  as  far  as  the  Mississippi  river  and  the 
eastern  limits  of  the  French  province  of  Louisiana,  bounded  on 
the  north  by  the  British  possessions  lying  on  the  St.  Lawrence 
and  the  great  lakes,  and  on  the  south  by  the  Floridas,  then  be- 
longing to  Spain. 

§  348.  In  addition  to  this  territory  ceded  by  the  several  States, 
the  United  States  have  acquired  by  treaty  or  conquest,  legalized, 
so  far  as  treaties  and  conquests  can  be  said  to  be  legalized,  by 
international  public  law — the  territories  completing  the  geo- 
graphical dominion  now  known  to  the  rest  of  the  world  as  that 

'  Luther  v.  Borden,  7  Howard,  56. 


SOVEREIGNTY    IN   THE    TERRITORIES.  411 

of  the  United  States.  Whatever  doubt  may  have  originally 
existed  as  to  the  power  of  the  G-ovemment  created  by  the  Con- 
stitution to  make  these  acquisitions  for  the  United  States,  their 
present  title  or  sovereignty  in  those  territories  must  be  taken  to 
be  legal  and  perfect. 

It  may  be  assumed  that  under  that  division  of  the  sum  of 
sovereign  power  which  is  made  in  the  Constitution,  every  several   | 
State  or  the  people  of  any  several  State  are  precluded  from  that  j 
external  exercise  of  political  power  by  which,  under  public  in- 
ternational law,  territory  is  acquired  or  political  dominion  geo- 
graphically extended.     The  power  then,  which  must  still  exist, 
necessarily  belongs  to  the  people  of  the  United  States  or  the 
integral  nation.     Hence,  on  the  acquisition  of  territory  by  the 
national  Government,  it  was  the  dominion  of  the  integral  people 
of  the  United  States,  not  that  of  the  several  States,  which  was 
extended  ;  having  the  same  effect  as  in  the  territory  ceded  by 
the  original  States.     This  dominion  was,  of  necessity,  by  the 
exercise  of  the  sum  of  sovereign  powers  ;  that  is,  both  the  powers 
vested  in  the  national  Government  by  the  Constitution,  which    j 
have  like  extent  throughout  the  entire  domain  of  the  United    ' 
States,  and  the  powers  which,  in  a  State,  are  exercised  by  its 
several  people. 

§  349.  In  the  territory  thus  held  by  the  United  States, 
whether  ceded  by  the  older  States  or  otherwise  acquired,  this 
absolute  or  undivided  sovereignty  has  existed  until  by  the  will 
of  its  possessors — the  people  of  the  United  States,  (indicated 
by  their  only  known  instrument,  the  national  Government,)  a 
political  people  has  been  recognized  in  certain  districts  of  that 
territory,  and  that  people  has.  as  a  corporate  political  body, 
consented  to  assume  and  have  been  declared  by  Congress  to 
hold,  in  and  for  a  particular  district,  the  sovereignty  held  by  the 
people  of  a  several  State  under  the  Constitution  ;  that  is,  a  cer- 
tain share  of  sovereign  power  to  be  exercised  severally  within 
the  limits  of  such  district,  thereafter  to  be  known  as  a  State, 
and  the  residue  of  sovereign  powers  to  be  exercised  in  union 
with  the  other  States.  By  which  act  the  political  people  of 
these  districts  has  become  added  to  the  constituting  people  of  the 


412  CREATION  OF  NEW  STATES. 

United  States,  that  is,  to  those  from  whom  the  Constitution  of 
the  United  States  derives  its  vitality.  Hence  the  admission  of 
new  States,  formed  within  the  territory  of  the  United  States, 
may,  from  the  moment  of  such  admission,  be  regarded  as  the 
autonomic  development  of  sovereignty,  and  not  an  act  taking 
place  under  law  in  the  ordinary  sense.' 

§  350.  Within  the  entire  national  domain  of  the  United 
States  sovereign  power  is  exercised  either  together  by  the  politi- 
cal peoi)le  of  a  State,  being  one  of  the  United  States,  and  the 
integral  peoj^jle  of  the  United  States,  or  else  by  the  people  of  the 
United  States,  solely  ;  and  no  law  can  be  recognized  witliin  that 
domain  which  does  not  derive  its  authority  from  one  of  these 
sources. 

The  "  people "  of  the  United  States  and  of  the  several 
States,  though  claiming  to  hold  their  collective  powers  by  a 
right  antecedent  to  all  positive  law,  being  a  body  existing 
through  custom  and  prescription,  are  always  (in  the  legal  point 
of  -view)  distinct  from  any  collection  of  persons,  however  large, 
even  though  of  citizens^  and  electors,  when  acting  in  any  other 

'  This  formation  and  admission  of  a  State  of  the  United  States  is  the  action  of  two 
parties,  two  political  persons,  exercising  certain  powers  as  sovereign.  It  is  an  auto- 
nomic contract  or  agreement,  above  positive  law,  (law  in  the  ordinary  sense,)  not 
under  it. 

The  will  of  one,  the  new  State,  is  that  of  those  who,  in  a  corporate  capacity  or  as  one 
political  person,  would  become  the  political  people  of  the  new  State  at  the  moment  of  its 
existence.  A  method  for  ascertaining  their  corporate  will  may  have  been  indicated 
under  some  law  for  the  exercise  of  the  electoral  franchise  by  the  individual 
constituents.  Its  requisitions  may  have  been  complied  with.  But  (if  it  is  admit- 
ted that  the  will  of  this  people  and  the  will  of  the  majority  of  the  individual  constitu- 
ents are  identical)  the  result  (a  vote)  may  or  may  not  accord  with  the  will  of  this 
corporate  people.  For  this  people,  or  a  majority  of  them,  may  have  declined  to  indi- 
cate their  will  imder  the  law. 

To  all  persons  who  do  not  represent  these  two  parties  in  their  autonomic  action,  the  re- 
sult under  the  law  is  conclusive.  Such  persons  are  bound  to  find  the  will  of  the  corpo- 
rate people  in  the  resulting  vote,  aud  to  recognize  no  other  indication  of  that  will. 

But  the  other  sovereign  party — the  United  States  or  those  who  represent  them  in 
this  autonomic  action — Congress,  (and  the  less  so  if  they  made  the  law,)  are  not  thus 
bound  under  law.  They  may  regard  better  evidence  of  the  wiU  of  the  party  they  are 
compacting  with  ;  if  any  there  be.     For  here  they  are  autonomic. 

That  evidence  might  be  found  in  criminal  acts ;  in  acts  of  violence,  wrong  and 
outrage.  But  if  it  should  be  more  indicative  of  the  will  of  the  other  party,  (the  people 
of  the  future  State,)  than  the  vote  imder  law,  Congress  may  with  perfect  consistency 
disregard  the  latter. 

^  Dred  Scott's  case,  19  Howard's  R.,  404.  Opinion  of  the  Court,  "  The  words 
'  people  of  the  United  States '  and  '  citizens '  are  synonymous  terms,  and  mean 
the  same  thing.  They  both  describe  the  political  body  who,  according  to  our  republi- 
can institutions,  form  the  sovereignty,  and  who  hold  the  power  and  conduct  the  Gov- 
ernment through  their  representatives.     They  are  what  we  familiarly  call  the   '  sov- 


THE   CONSTITUTING   PEOPLE.  413 

mode  than  those  known  to  these  Constitutions  and  the  laws  and 
usages  which  have  been  established  or  confirmed  under  them, 
even  though  those  persons  should  be  a  majority  of  the  electors 
or  the  whole  mass  of  the  electors. '  The  present  powers  of  this 
"  people  "  are  vested  by  political  changes,  established  by  au- 
tonomic force,  and  legitimated  only  by  their  peaceful  and  unin- 
terrupted continuance.'^  The  rights  of  this  "  jjeople  "  are  not, 
in  any  legal  sense,  dependent  on  the  theory  of  natural  society  or 
the  consent  of  individuals  as  natural  persons.  All  within  the 
actual  geographical  hmits  occupied  or  held  by  them  and  the 
nation  which  they  claim  to  represent,  are  each,  however,  free  in 
legal  condition,  absolutely  subject  to  their  authority  ;  without  re- 
gard to  any  assent  or  acquiescence,  express  or  implied.^ 

ereign  people '  and  every  citizen  is  one  of  this  people,  and  a  constituent  member  of  this 
sovereignty."  The  tenn  citizen  may  unquestionably  be  properly  thus  employed,  be- 
cause this  is  one  of  the  senses  in  which  it  is  vernacularly  used.  But  it  is  equally  true 
that  it  may  be  properly  employed  where  it  cannot  have  this  signification. 

In  the  same  opinion  it  was,  however,  held  that  the  individuals  constituting  this 
"  sovereign  people  " — "  the  political  body,"  &c.,  are  not  known  by  their  possession  of 
the  elective  franchise.  For  after  concluding  that  a  negro  is  not  a  citizen  of  the 
United  States,  it  is  said,  p.  422,  "  Undoubtedly,  a  person  may  be  a  citizen,  that  is,  a 
member  of  the  community  who  form  the  sovereignty,  although  he  exercises  no  share  of 
the  political  power,  and  is  incapacitated  from  holding  particular  offices.  Women  and 
minors,  who  form  a  part  of  the  political  family,  cannot  vote,  *  *  *  yet  they  are 
citizens." 

The  various  meanings  in  which  the  term  citizen  may  be  used,  and  in  which,  it  is 
herein  held,  it  is  used  in  the  Constitution  of  the  U.  S.,  wUl  be  considered  in  some  of 
the  succeeding  chapters. 

*  As  matter  of  tow,  strictly  defined,  this  is  a  necessary  conclusion  ;  and,  hence,  that 
a  Constitution  cannot  legally  be  changed,  except  in  such  manner  as  may  have  been  in 
the  same  Constitution  provided.  But,  the  possession  of  sovereignty  being  a  fact,  and 
not  the  result  of  law,  it  is  evident  that  a  new  Constitution  may,  at  any  time,  become 
operative,  independently  of  the  provisions  of  the  former.  However,  th«  establishment 
of  such  a  Constitution  would,  strictly  speaking,  be  a  revolutionary  act — an  act  above 
all  law. 

"  Luther  v.  Borden,  7  Howard,  U.  S.  Rep.  Elisha  Williams  in  report  of  N.  Y.  Const. 
Convention  of  1821,  p.  248.  Webster's  Wcrks,  VI.,  217;  Calhoun's  Essay,  1  Works, 
pp.  169,  188. 

'  Story's  Comm.,  §§  327—330. 

Memoirs  of  F.  Perthes,  vol.  II.,  p.  285.  (Liberalism  and  the  Political  Constitutions 
of  Germany,  1822-1825.)  "  The  constitutions  desired  were  rather  to  be  the  offspring 
of  that  political  understanding  which  is  always  and  everywhere  the  same ;  accordingly 
they"  were  not  to  presuppose  the  existence  of  any  established  authority,  and  were  to 
be  for  all  nations  essentially  alike.  To  liberahsm  of  this  sort,  Perthes  was  a  decided 
opponent.  He  wrote :  '  Men  must  be  governed,  and  they  wish  it  too ;  but  as  they  can 
be  governed  only  by  men,  every  goverimient  must  depend  on  some  human  accessory,  be 
it  a  seneschal  or  a  scullion,  a  major's  wig  or  a  corporal's  stajff.  It  is  useless  to  fret  and 
kick  against  the  pricks ;  and  though  you  were  to  set  up  among  us  a  political  idol 
from  France  or  America,  it  wovdd  only  be  a  new  Baal,  that  would  burst  when  his 
time  came.'  Again,  _'  you  consider  the  exclusive  majesty  of  tfie  luic,  a  phrase  of  noble 
and  profound  import.     Yes,  indeed,  it  soimds  fine  in  the  ears  of  our  age,  but  profound 


414  MAJESTAS,    LEGIBUS    SOLUTA. 

§  351.  The  power  held  by  the  "people  "  of  the  several  and 
United  States  is  of  the  highest  class  of  power  known  to  human 
laws.  It  is  the  same  power  as  that  which  formerly  resided,  as 
to  the  same  territory,  in  the  colonial  Governments  and  the  parlia- 
ment and  king  of  Great  Britain,  and  is  absolute  as  the  supreme 
national  power  in  any  community.  It  is  power  superior  to  aU 
law  ;  unless  it  be  those  principles  which  have  been  called  the 
law  of  nature,  natural  justice,  natural  reason,  &c.,  and  even 
practically  considered,  superior  to  those  principles  ;  since  it  is 
amenable  to  no  tribunal  for  disregarding  them,  except  as  they 
may  be  vindicated  in  public  international  law.  It  is  of  the 
same  nature  as  that  of  the  English  parliament,  when  it  is  said 
of  it  that  it  can  do  any  thing,  not  absolutely  impossible,  and 
superior  to  it,  if  that  of  parliament  be  controlled  by  common 
law  ;  not  being  constitutional  power,  but  power  above  the  con- 
stitution. 

If  any  rights  can  be  said  to  be  vested  in  individual  members 
of  the  nation  independently  of  political  sovereignty,  whether  they 
be  the  same  as  those  held  by  private  persons  before  the  Revo- 
lution or  not,  they  rest  as  legal  rights,  within  the  jurisdiction 
of  this  "  people,"  on  their  acknowledgment  of  them  as  their 
highest  guarantee  or  sanction. 

"  None  on  earth,  neither  people  nor  monarch,  neither  all, 
many,  few,  or  one,  have  a  right  to  do  what  they  like.  None,  not 
even  unanimous  millions,  have  a  right  to  do  what  is  unjust."' 
Natural  reason,  right,  or  equity  is  unalterable.  But  if  it  be 
violated  here,  by  this  sovereign  will,  there  is  no  power  known  to 
the  laiv,  that  can  resist  its  decree,  nor  any  judicial  tribunal  that 
can  overrule  its  commands.^ 

it  is  not :  it  is  nothing  in  fact,  but  empty  sonnd,  for  majesty  of  the  law  without  au- 
thority of  the  lawgiver  is  mere  nonsense.  Majesty  must  have  a  body,  monarchical  or 
republican,  as  you  please,  but  a  body ;  and  law  presupposes  an  authority  not  made, 
but  previously  existing  :  which  is  precisely  what  our  whimsical  age  is  ever  denying  in 
one  form  or  another.'  " 

'  Lieber,  Pol.  Eth.,  B.  II.,  §  133. 

'  Harvey  and  others  v.  Decker  and  Hopkins,  18  Walker's  Mississippi  R.,  36,  and 
Wheeler's  Law  of  Slavery,  343.  Otis'  Rights  of  the  Col.,  1  Am.  Tracts,  p.  12.  J.  Q. 
Adams  in  an  oration  July  4th,  1831,  (1  Story's  Comm.,  p.  145,  n.,)  denied  that  "  an 
absolute,  uncontrollable,  irresistible  and  despotic  power  "  is  essential  to  sovereignty, 
or  that  the  doctrine  was  admissible  in  the  jurisprudence  of  the  United  States.  The 
question  is  nearly  the  same  with  that  of  a  natural  law  in  general  jurisprudence.  See 
ante,  §§  3-8,  and  of  the  power  of  parliament  over  common  law,  ante,  §  131. 


CHAPTEK   XII. 

CONDITIONS     OF     FREEDOM     AND     BONDAGE      CONSIDERED     WITH 
REFERENCE    TO    THE    PUBLIC    LAW    OF    THE    UNITED    STATES. 

§  352.  It  was  observed  in  the  previous  chapter  that  in  every 
state  or  nation  there  must  be  some  natural  persons  who  are  to 
be  considered  as  actually  holding,  using  or  enjoying  the  power 
or  right  of  the  state,  or  of  society,  tp  create  rules  of  action  for 
the  individual  members  of  the  state  or  nation,  and  some  whose 
liberty  of  action  is  to  be  regarded  as  being  determined  by  those 
rules.  ^  This  right  of  action  in  the  first  class  of  persons,  or  the 
fact  of  their  holding  this  power,  is  said  to  be  determined  by  the 
public  law  of  the  state  ;  but  that  which  is  here  called  laio  has 
rather  the  character  of  a  law  in  the  secondary  sense,  or  of  a 
mode  of  action,  than  of  a  law  in  the  primary  sense,  or  that  of  a 
rule  ;  since  the  fact  is  the  judicially  recognized  origin  of  aU 
rules  of  action  having  coercive  force  upon  private  individuals. 
This  right  of  action  in  this  class  of  persons  in  a  state,  though  it 
may  in  a  certain  sense  be  called  a  right  or  liberty,  is  then,  strict- 
ly speaking,  above  law  ;  since  it  is  presupposed  in  the  judicial 
recognition  of  every  coercive  rule,  and  referred  to  as  being  the 
source  of  its  authority.  The  action  which  is  contemplated  by 
this  so-called  public  laio,  being  political  or  connected  with  the 
very  existence  of  the  state,  the  right  of  action  may  be  called 
political  liberty.  That  liberty  of  action  which  is  determined  by 
the  law  proceeding  from  those  who  possess  this  poUtical  Hberty, 
since  it  exists  in  social  relations,  or  the  ordinary  relations  of 

*  Ante,  %  336. 


416  LIBERTY,    CIVIL    AND   POLITICAL. 

private  persons  under  a  civil  state,  may  be  called  social  or  civil 
liberty  ;  and  the  law  which  creates  this  liberty  may  be  more 
properly  called  private  than  public  law,  since  it  affects  persons 
in  private  relations,  or  establishes  relations  between  persons 
having  a  jDrivate  capacity  or  condition.' 

§  353.  Although  that  which  is  here  denominated  political 
liberty  must,  necessarily,  in  every  state  be  vested  in  or  enjoyed 
by  some  determinate  persons,  there  may  be  great  differences  of 
fact  and  law  between  various  states  in  the  distribution  of  that 
right  or  power  of  action.  In  some  states  it  may  be  found  to  be 
possessed  by  a  proportionately  large  number  of  those  who  also, 
by  the  private  law,  enjoy  civil  liberties.  But,  the  larger  the 
proportionate  number  of  those  individuals  who  possess  this  right 
or  power,  the  less  probable  does  it  become  that  its  possession  by 
any  one  of  those  individuals  should  be  independent  of  any  exter- 
nal will,  or  should  be  a  right  above  law  ;  and  the  more  probable 
will  it  be  that  the  right  or  power,  here  called  political  liberty, 
will  acquire  a  legal  character,  like  that  of  the  right  called  civil 
liberty,  by  being  dependent  on  the  will  of  a  person,  or  number 
of  persons,  distinct  from  the  indi^^dual  holder  of  the  light. 
Where  a  large  number  of  persons  are  equal,  or  nearly  equal,  in 
their  possession  of  this  right,  that  equality  can  hardly  be  other- 
wise manifested  than  by  accepting  the  will  of  the  whole  body, 
or  of  certain  parts  or  proportions  of  the  whole  number  of  indi- 
viduals, as  the  expression  of  the  supreme  or  sovereign  wiU.  In 
that  case  the  possession  of  this  right  by  any  one  individual  is 
founded  on  a  will  superior  to  and  distinct  from  his  own ;  and 


'  Rogron,  Code  Civil  Expliqu^. — Lib.  I.,  tit.  i.  c.  i.  "  Les  droits  de  I'homme  en  so- 
ciete  sont  politiques  ou  civils.  Les  droits  politiques  sont  les  droits  dont  les  citoyens 
jouissent  par  rapport  au  gouvernement,  et  qui  leur  permettent  de  participier  k  la  puis- 
sance publique ;  savoir,  de  voter  dans  les  assemblees  electorales,  d'etre  elus  et  admissi- 
bles  a  tons  les  emplois,  i  toutes  les  dignites,  etc.  Les  droits  civils,  sont  les  droits  ou 
certains  advantages  dont  les  citoyens  jouissent  entre  eux  ct  qui  leur  sont  garantis  par 
la  loi  civile.  Les  principaux  sont  le  droit  de  puissance  patemelle,  ou  maritale,  tons  les 
droits  de  famiUe,  ceux  d'etre  nomme  tuteur,  de  succ6der,  de  disposer  de  ses  biens  et 
d'en  recevoir  par  donation  entre  vifs  et  par  testament.  Les  droits  civils  se  trouvent 
particulierement  enumeres  dans  I'article  25." 

Lord  John  Russel,  in  his  Essay  on  the  History  of  the  English  Government,  distin- 
guishes civU,  personal,  and  poUtical  liberty.  This  distinction  might  be  proper  where 
the  existence  of  a  class  of  persons,  not  enjoying  personal  liberty,  is  recognized  by 
private  law. 


INVESTITURE    OF    SOVEREIGNTY.  417 

therefore,  as  to  him,  or  regarded  as  the  right  of  a  natural  per- 
son, it  is  the  result  of  a  law  in  the  strict  sense  ;  although  the 
possession  of  the  power  by  the  collective  mass  of  which  he  forms 
a  part  is  anterior  to  all  law  in  the  strict  sense.  In  this  instance 
political  liberty  is  a  legal  right  of  a  private  person  ;  though  ex- 
isting by  public  law. 

In  other  states,  that  right  of  action,  which  is  here  called 
political  liberty,  may  be  so  enjoyed  by  a  few  or  by  one,  that 
those  few  or  that  one  must  be  regarded  as  individually  identified 
with  the  state,  or  the  supreme  source  of  law,  independently  of 
any  other  person  or  persons  ;  and  political  liberty,  not  being 
exercised  by  any  who  are  individually  subject  to  the  state,  or  to 
those  who  possess  its  power,  must  be  said  to  have  no  legal  ex- 
istence ;  that  is,  though  the  right  must  exist  somewhere,  it  is 
not  created  by  law  in  the  primary  sense.  The  possession  of  the 
right  is  said  to  be  ascertained  by  public  law,  but  by  law  only  in 
the  sense  of  the  statement  of  a  fact  or  condition.  ^ 

§  354.  There  is  then  a  distinction  in  the  mode  of  existence 
of  political  states  which  is  more  material,  in  determining  the 
nature  of  freedom  in  those  states,  than  any  derived  from  those 
differences  between  forms  of  government  which  distinguish 
them  as  republican,  monarchical,  aristocratic,  democratic  states. 
This  distinction  is  founded  on  a  difference  in  the  location  of  the 
ultimate  sovereign  power  ;  and  by  it  all  states  can  be  distin- 
guished into  two  classes,  viz. : 

First :  Those  wherein  the  ultimate  sovereign  power  is  by  fact 
and  law  vested  in  the  nation  at  large,  or  in  individuals  of  that 
nation,  who  are  at  the  same  time  politically  and  legally,  as  indi- 
viduals, the  subjects  of  that  power. 

Second  :  Those  wherein  that  power  is  by  fact  and  law  vested 
in  a  single  individual,  or  in  a  limited  number  of  persons,  distinct 
in  political  and  legal  relations  from  the  body  of  the  nation,  and 
not  individually  subject  to  any  other  law,  in  the  strict  sense, 
than  that  proceeding  from  themselves.'^ 

'  In  jurisprudence,  the  location  of  sovereign  power  is  n  question  of  fact.  In  an  eth- 
ical view,  the  fact  is  according  to  the  moral  judgment  of  the  observer.  Compare  the 
method  of  reasoning  ni  Lieber's  Political  Ethics,  B.  2,  cli.  6. 

*  Lieber's  Pol.  Eth.,  vol  1,  p.  404,  note  citing  Axist.  Pol.  iii.  7,  1  Ethics,  viii.  12, 

27 


418  SOVEREIGNTY    AND    CONSTITUTIONS. 

§  355.  The  name  republic  or  commonwealth,  which  has  been 
applied  without  much  discrimination  to  many  very  various  forms 
of  a  state,  can  with  propriety  be  given  only  to  states  of  the  first 
class  above  described.  In  those  of  the  second  class,  the  state 
power,  or  the  sovereignty,  has  a  private  character,  the  nature  of 
a  private  right ;  though  above  all  rights  conferred  by  the  law 
in  its  ordinary  sense.'  If  by  the  constihition  of  a  state  is  meant 
merely  the  legal  recognition  of  the  existing  investiture  of  sover- 
eignty, a  state  of  either  class  may  be  said  to  have  a  constitu- 
tion ;  but  in  those  of  the  second  it  will  be  only  equivalent  to 
the  simple  fact  of  the  possession  of  sovereign  power.  In  the 
first  class  of  states  only,  it  acquires  the  character  of  a  law  ; 
since  each  individual,  participating  in  the  possession  of  supreme 
power,  or  enjoying  this  political  liberty,  holds  that  political 
right  by  the  exj^ressed  will  of  an  integral  sovereign  personality, 
to  which  he  is  subject.  In  such  states,  therefore,  there  is  a 
true  laiv,  coexistent  with  the  fact  of  the  investment  of  sover- 


vol.  II.  p. 64,  A.  B.Casaubon.  M.  De  Tracy's  commentary  on  Montesquieu's  Spirit  of  Laws ; 
Phila.  1811,  page  12:  "Confining  myself,  then,  wholly  to  the  fundamental  principles 
of  civil  society,  disregarding  the  difference  of  foniis,  neither  censuring  nor  approving 
any,  I  will  divide  all  governments  into  two  classes,  one  of  these  I  will  denominate 
nadoiia!,  in  which  social  rights  are  common  tD  a.]\(tiationaux  ou  de  droit  commun);  the 
Other  special,  establishing  or  recognizing  particular  or  unequal  rights, 

"  In  whatever  manner  governments  may  be  organized,  I  shall  place  in  the  first 
class  all  those  which  recognize  the  principle,  that  all  rights  and  power  originate  in, 
reside  in.  and  belong  to,  the  entire  body  of  the  people  or  nation ;  and  that  none  exists 
but  what  is  derived  from  and  exercised  by  the  nation ;  those,  in  short,  which  explicitly 
and  without  reserve  maintain  the  maxim  expressed  in  the  parUament  of  Paris,  in  the 
month  of  October,  1788,  by  one  of  its  members,  namely,  .  .  .  Magistrate.^,  as  magis- 
trates, have  only  duties  to  perform  (n'ont  que  des  devoirs) ;  citizens  alone  have  lights  (lea 
citoyens  seuls  ont  les  droits)  ;  imderstanding  by  the  term  magistrate,  any  person  what- 
ever who  is  invested  witli  a  public  function. 

»  «  »  «  (p  13-)  I'  Qq  tjie  other  hand,  I  call  all  those  special  governments, 
whatever  may  be  their  fonns,  where  any  other  sources  of  power  or  rights,  than  the 
general  rule  of  tlie  nation,  are  admitted  as  legitimate  ;  such  as  divine  authority,  con- 
quest, birth  in  a  particular  place  or  tribe,  mutual  articles  of  agreement,  a  social  com- 
pact, manifest  or  tacit,  where  the  parties  enter  into  stipulations  lUce  powers  foreign  to 
each  other,"  t&c.  See  this  distinction  adopted  by  Lanjuinais'  Constitutions,  tom.  |1, 
pp.  13,  U. 

See  also  Sir  William  Temple's  Essay  on  Government,  p.  2,  and  a  somewhat  similar 
distinction  by  Grotius,  B.  et  P.,  L.  i.,  3,  12,L.  il  6,  3,  between  regna  patrimonialia  and 
usufructualia ;  rejected  by  Heineccius,  J.  Nat.  et  Gen.,  L.  2,  c.  7,  §  147. 

'  P.  A.  Jay,  m  Report  X.  Y.  Const.  Conven.  of  1821,  p.  200. 

Acts  of  Vienna  Congress ;  June,  1820,  art.  57.  '•  As  the  German  Confederacy,  with 
the  exception  of  the  free  cities,  is  composed  of  sovereign  princes,  so  must  in  conse- 
quence of  this  fundamental  idea  the  collected  power  of  the  state  remain  united  in  the 


LIBERTY    AND    CONSTITUTIONS.  419 

eignty,  which  is  the  cause  of  the  law.'  The  public  law,  which 
is  mainly  a  law  in  the  secondary  sense. — the  statement  of  a  fact, 
or  of  a  mode  of  action,  and  the  private  law,  which  is  mainly  a 
law  in  the  primary  sense, — a  rule  of  action,  here  become,  to  a 
certain  degree,  identified.  Only  in  this  class  of  states  can  it  be 
said  that  the  constitution  of  the  state  establishes  political  free- 
dom, or  political  liberty,  as  the  right  of  an  individual  subject  or 
citizen  ;  and  in  such  States^  this  liberty,  though  a  private  right, 
regarded  as  attaching  to  that  individual,  exists  by  public, 
rather  than  by  private  law. 

§  356.  Freedom  of  the  individual  in  social  relations,  or  civil 
liberty,  according  to  the  definition  above  given,  which  is  freedom 
by  private  law,  may  evidently  vary  greatly  in  its  nature  or 
quality  of  jirivilege  ;  since  it  may  include  a  greater  or  less  va- 
riety of  rights  of  action  in  those  relations.  This  freedom  must, 
to  some  degree,  exist  in  every  state  ;  since  rights  of  persons 
arise  in  every  relation  established  by  law.  When  the  idea  of 
political  liberty,  as  above  defined,  is  excluded  from  the  definition 
of  civil  liberty,  it  is  evident  that  any  degree  of  civil  liberty 
which  can  practically  exist  in  one  of  the  above  described  classes 
of  states,  may  also  exist  in  the  other.  But  in  neither  class  of 
states,  more  than  in  the  other,  does  any  particular  degree  of  this 
freedom  necessarily  exist ;  because  in  each  it  depends  directly 
upon  the  will  of  a  sovereignty  personally  distinct  from  the  indi- 
vidual subject.  But  in  the  first  class  of  states, — while  it  is 
equally  dependent  on  the  sovereignty  of  the  nation, — the  more 
general  the  extent  and  security  of  political  freedom,  or  the  more 
yiidoiy  national'^  the  constitutional  sovereignty,  the  more  proba- 
ble is  it  that  a  high  degree  of  civil  liberty  will  be  found  to  ac- 
company political ;  or  to  be  possessed  by  those  at  least  who  by 

ruler  of  the  state,  and  tlie  sovereign  by  the  constitution  can  be  bound  to  co-operate 
with  the  chambers,  only  in  the  practice  of  definite  rights." 

Art.  58.  The  sovereign  princes  united  in  the  confederacy  shall  be  hindered  or  lim- 
ited, in  their  federal  obligations,  by  no  provincial  constitution. 

North  Brit.  Kev.,  Aug.  1855,  p.  229,  Am.  Kepr. — "Our  position,  that  in  every  me- 
difEval  state  the  governing  body  had  a  loctis  standi  of  its  own  which  it  was  constitution- 
ally entitled  to  defend  against  the  public  will,"  &o 

'  Lex  facit  quod  ipse  sit  Rex. — Bracton,  L.  1,  fol.  5 ;  L.  3,  fol.  107. 

"^  National  not  being  here  used  in  distinction  iroxa  federal,  as  in  the  preceding  chap- 
ter, but  in  distinction  from  private  or  svecial,  as  those  terms  are  employed  by  M.  de 
Tracy  in  the  note  on  the  last  page. 


420  LIBERTY    AND    CONSTITUTIONS. 

the  public  law  possess  political  liberty  ;  since  in  this  class  of 
states,  the  public  law  gives  to  the  subjects  of  private  law,  or  to 
a  large  proportion  of  the  subjects  of  private  law,  the  right  to 
participate,  in  a  greater  or  less  degree,  in  making  that  law.' 
Civil  and  political  liberty,  as  rights  of  persons,  according  to  the 
definitions  here  given,  are  therefore  intimately  connected,  though 
not  necessarily  coexistent.  And  it  is  only  in  states  of  the  first 
class  that  civil  or  social  liberty  can  have  a  constitutional  founda- 
tion ;  that  is,  an  existence  connected  with  the  public  law.'^ 

§  357.  In  a  state  of  the  widest  national  basis,  or  most  popu- 
lar constitution  of  sovereignty,  wherein  political  riglits  are  most 
widely  and  equally  distributed,  the  liberty  of  the  individual 
subject  or  citizen  is  ever  in  fact  dependent  by  public  law  on 
the  will  of  the  majority  of  those  who  equally  share  those  rights  ; 
though  his  equality  in  the  possession  of  jiolitical  power  is  a 
bulwark  to  each  one  against  a  diminution  of  his  civil  liberty  by 
that  will.'  In  every  state  the  more  intimate  the  connection 
between  the  possessor  of  sovereignty  and  the  mechanical  Govern- 
ment, or  the  instruments  of  the  ordinary  government  of  the 
state,  the  greater  must  be  the  facility  for  a  legal  invasion  of 
the  liberty  of  the  individual  subject,  as  previously  recognized 
by  law  ;  or  the  easier  the  process  by  which  the  law,  public  or 
private,  which  defines  his  rights,  may  be  changed.  In  states 
of  the    second   class,   this   connection   is   absolute    identity ;  * 

'  Penn's  Preface  to  his  frame  of  government  for  Pennsylvania,  1C82.  Marshall's  Life 
of  Washington,  1  vol.,  note  iv.  "  Thirdly, — I  know  what  is  s.iid  by  the  several  ad- 
mirers of  monarchy,  aristocracy,  and  democracy,  which  are  the  rule  of  one,  a  few,  and 
many,  and  are  the  three  conimou  ideas  of  government  when  men  discourse  on  the  sub- 
ject. But  I  choose  to  solve  the  controversy  with  this  small  distinction,  and  it  belongs 
to  all  three,  any  government  is  free  to  the  people  under  it  (whatever  be  the  frame) 
where  the  laws  rule  and  the  people  are  a  party  to  those  laws,  and  more  than  this  is 
tyranny,  oligarchy,  or  confusion." 

^  Lanjuinais'  Constitutions,  t.  1,  p.  97,  "  S'il  n'y  a  des  lois  constitutionelles,  ou  de 
mollis  politique?,  les  droits  prives,  pour  les  quelles  tout  existo,  n'ont  point  de  garan- 
tie." — This  is  his  tr.inslation  of  Bacon's— sub  tutcla  juris  publici  latet  jus  privatum. 

^M.  Benj.  Constant;  Coll.  des  Ouvrages  Politiques;  Paris,  1818,  Tom.  1,  p.  174, 
n.  "  M.  de  Montesquieu,  comme  la  plupart  des  ecrivains  politiques,  mc  semble  avoir 
confondu  deux  choscs,  la  liberte  et  la  garantie.  Les  droits  individuels,  c'est  la  libcrtc  : 
les  droits  sociaux,  c'est  la  garantie.  L'axiome  de  la  souverainete  du  peuple  a  ete  con- 
sidere  comme  un  principle  de  liberte  ;  c'est  un  principle  de  garantie.  II  est  destine  k 
empecher  un  individu  de  s'emparer  de  I'autoriti!  qui  n'appartient  qu'i  I'association  cn- 
tiere ;  mais  il  ne  decide  ricu  sur  la  nature  et  les  limites  de  cette  autorite." 

■*  The  fonn  of  government  becomes  merely  what  has  of  late  been  denominated 
bureaucracy.  See  Lieber,  Civil  Lib.  and  Self-Gov.,  vol.  I.,  p.  182,  and  Polit.  Eth.  vol. 
L,  p.  397. 


A   CONSTITUTED    GOVERNMENT.  421 

but  in  those  of  tlie  first  class,  or  of  the  national  character, 
the  more  widely  national  the  possession  of  sovereignty,  or,  the 
larger  the  actual  and  relative  number  of  the  persons  holding 
political  rights,  and  the  greater  the  equality  of  those  rights, 
the  stronger  is  the  natural  necessity  for  a  Government,  i.  e.,  a 
pohtically  organized  instrument  of  government,  distinct  from 
the  national  possession  of  original  sovereign  power,  though  de- 
pendent upon  it  for  its  existence.  In  such  states  the  word 
constitution  has  a  more  extended  meaning  than  it  can  have  in 
the  public  law  of  states  of  the  other  class  ;  since  it  includes  a 
law  in  the  strict  sense,  under  which  the  Government  is  consti- 
tuted ;  and  by  determining  the  connection  of  that  Government 
with  the  ultimate  sovereignty  of  the  nation,  the  constitution, 
in  this  case,  gives  to  the  political  liberty  of  the  individual  still 
more  of  the  nature  of  a  legal  right.  Since  such  a  state  is  re- 
publican, by  the  existence  of  political  freedom,  as  the  right  of 
individual  members  of  the  nation,  under  laio  properly  so  called, 
the  Government  iu  this  case  is  republican,  whatever  its  form, 
when  the  political  right  of  the  individual  subject  continues  to 
be  exercised,  in  manifesting  the  supreme  national  will,  inde- 
pendently of  the  legislative  power  of  such  constituted  Govern- 
ment, which  can  only  be  in  the  ordinaiy  creation  and  continu- 
ance of  the  actual  agents  or  instruments  of  government.  ^  When 
ci\'il  freedom  is  made  by  the  sovereign  power  independent  of 
the  mechanical  Government,  it  acquires  a  constitutional  char- 
acter ;  for  it  can  only  be  infringed  by  a  change  in  the  constitu- 
tion of  the  Government,  or  the  public  law  under  which  that 
Government  exists  ;  and  in  such  a  constitution  there  is  a  part 
which  is  truly  private  law,  as  well  as  public  law. 

§  358.  Since  all  rights  of  natural  persons  in  a  civil  state  are 
to  be  considered,  in  law,  as  finally  dependent  on  the  will  of  the 
sovereign  power,  it  is  of  the  first  importance,  in  a  legal  view  of 

'  Mr.  Calhonn,  in  his  Disquisition  on  Government,  1  Works,  p.  8,  considers  that 
the  Government  is  in  all  instances  nceess.^rily  identical  with  the  original  possessor  of 
national  or  sovereign  power,  though  he  there  speaks  of  the  possibility  of  a  constitution 
controlling'  such  a  Government;  and,  on  page  12,  of  the  riglit  of  suffrage  as  a  power 
above  that  of  the  Government.  In  his  Essay  on  the  Constitution  of  the  U.  S..  he 
speaks  of  the  sovei-eign  power  as  being  in  "  the  people." 


422  PUBLIC    LAW    FOR   LIBERTY. 

freedom  or  its  opposites  in  any  state  or  nation,  to  exhibit  the 
rights  in  which  that  freedom  or  the  obligations  in  which 
those  opposites  consist,  in  their  connection  with  or  dependence 
on  the  pubHc  law  of  tlie  state.  Those  rights  wliich  constitute 
political  liberty  (though  private  in  attaching  to  private  per- 
sons— the  subjects  of  private  law),  are  properly  described  as 
effects  of  jniblic  law  ;  but  in  exhibiting  the  foundation  (dura- 
tion, extent,  legal  necessity)  of  those  rights  which  constitute 
civil  liberty  under  private  law,  not  only  must  the  relations 
established  by  that  law  be  shown,  but  also  the  dependence  of 
that  law  upon  the  public  law  of  the  constitution  of  the  state 
and  of  its  Government. 

In  those  states  wherein  the  supreme  power  or  sovereignty  is 
of  a  private  nature,  as  before  defined,  there  is  little  or  no  room 
for  any  consideration  of  this  kind  ;  since  all  laws,  affecting  the 
civil  or  social  rights  of  the  subject  of  the  state,  proceed  from  a 
political  authority  entirely  distinct  from  and  superior  in  its  ex- 
istence to  any  of  his  legal  rights.  In  states  wherein  the  sover- 
eignty has  any  thing  of  the  national  character,  where  all  rights 
of  private  persons  may  have  to  a  greater  or  less  degree  a  recog- 
nized co-existence  with  the  sovereign  power,  the  law  of  those 
rights  has  a  more  complicated  nature  ;  being  both  public  and 
private  law.  The  legal  nature  of  those  rights  which  constitute 
civil  liberty  necessarily  becomes  still  more  complicated  under  a 
state,  of  this  class,  wherein  the  sovereign  powers,  inherent  in  a 
state  or  nation,  are  divided  or  are  invested  in  severalty. 

§  359.  The  present  Constitution  of  the  United  States  being 
recognized  to  proceed  directly  from  the  legitimate  and  supreme 
source  of  power,  its  provisions  become  the  highest  rule  of  law 
in  determining  the  relations  of  all  persons  and  things  which  can 
be  affected  by  them. 

The  Constitution  has  a  twofold  aspect : 

First, — which  has  been  already  considered — it  is  a  declara- 
tion of  the  location  of  sovereign  power  in  the  people  of  the 
United  States  as  one,  and  in  the  people  of  the  several  States  as 
separate  polities  ;  equivalent,  legally,  to  the  evidence  of  a  pre- 


PRIVATE    LAW    IN    THE    CONSTITUTION.  423 

existing  fact,  to  be  recognized  judicially  as  the  basis  of  public 
and  private  law. 

Second, — it  is  direct  legislation,  by  the  exercise  of  the  sov- 
ereign powers  held  by  the  people  of  the  United  States  as  a  po- 
litical unity,  and  is  either  public  or  private  law. 

The  public  law  is  that  which  constitutes  the  Government  of 
the  United  States, — creating  thereby  a  source  of  private  law  ; 
and  those  provisions  which  create  relations  in  which  the  several 
States  or  the  Government  of  the  United  States  are,  in  their  po- 
litical capacity,  the  subjects  of  rights  or  obligations. 

The  private  law  of  the  Constitution  is  contained  in  those 
provisions  which  create  relations  in  which  private  persons  are 
the  subjects  of  rights  or  obligations  anterior  to  and  independent 
of  the  legislation  and  powers  of  the  national  Government,  and 
render  those  relations  independent  of  the  powers  held  by  the 
several  States.'  Therefore,  although  the  subject  of  examina- 
tion,— the  condition  of  persons  in  respect  to  freedom  and  its 
opposites,  is  a  department  of  private  relations,  and  belongs 
strictly  to  private  municipal  law,  as  before  defined,^  the  ne- 
cessary subjection  of  that  law  to  the  power  of  the  state  renders 
a  preliminary  reference  to  the  public  law  of  the  Constitution 
necessary,  to  determine  the  sources  from  which  laws  affecting 
those  relations  may  originate,  and  the  reciprocal  limitations  or 
restrictions  on  those  sources  of  law,  in  respect  to  their  extent  or 
jurisdiction,  as  an  essential  element  of  the  condition  of  persons 
subject  to  the  law  proceeding  from  them. 

§  360.  Whatever  may  be  the  true  doctrine  of  the  essential 
political  existence  of  the  people  of  the  United  States,  it  must 
be  taken  as  the  first  principle  of  public  law  (the  law  in  the 


'  Mr.  Calhoun,  1  Works,  p.  191,  &c., — distinguishing  between  "the  constitution- 
inaking  and  the  law-making  powers" — appears  to  have  held  that  the  Constitution  of 
the  U.  S.  has  nothing  ofthe  character  or  operation  of  private  law,  or  that  it  does  not 
maintain,  of  its  own  force,  any  rights  or  obligations  of  private  persons.  Jlr.  Benton, 
in  his  Examination  ofthe  Dred  Scott  case,  p.  14,  &c., — holding  that  the  Constitution 
does  not  "  act  of  itself  anywhere,  and  that  it  required  an  act  of  Congi'ess  to  put  it  into 
operation  before  it  had  effect  anywhere," — appears  to  hold  the  same  doctrine. 
Mr.  Benton  cites  Webster  and  Clay  as  being  of  the  same  opinion,  and  then  shows  that 
Mr.  Calhoun  held  the  contrary,  in  maintaining  that,  by  the  operation  of  the  Constitu- 
tion alone,  slavery  exists  in  all  the  territories  of  the  U.  S. 

*  Ante,  %  25. 


424  A    CONSTITUTED    GOVERNMENT 

primary  sense),  proceeding  from  the  rightful  possessors  of  sov- 
ereignty that  by  the  written  Constitution  they  have  created  a 
Government,  which,  in  the  powers  given  it,  is  to  be  considered 
rightfully  authoritative  within  the  territorial  limits  of  the  do- 
minion of  that  people.  From  an  examination  of  the  Constitu- 
tion, in  relation  to  this  its  effect,  it  is  evident  that  the  Govern- 
ment thus  constituted  or  created  is  not  the  possessor  of  the 
sovereignty  or  supreme  powers,  which  it  may  exercise,  in  con- 
sequence of  an  absolute  political  transfer  of  those  powers  from 
the  people.  This  is  shown  by  the  fact  that  this  Government  is 
established  in  three  distinctly  organized  parts,  each  holding  one 
of  the  necessary  and  natural  means  or  functions  by  which  su- 
preme powers  are  exercised  :  but  neither,  in  itself  alone,  con- 
stituting supreme  or  sovereign  power  ;  which,  to  be  such,  must 
be  uncontrollable  not  only  in  its  ultimate  effect,  but  also  in  the 
mode  of  its  action.  The  legislative,  judicial  and  executive 
functions,  though  each  indispensable  to  the  independent  exer- 
cise of  political  power,  and  commonly  designated  as  sovereign 
powers,  are  not  such,  projjcrly  speaking  ;  but  are  the  modes  in 
which  supreme  and  sovereign  power  is  manifested.  But  since 
these,  combined  in  their  action,  j^roduce  the  effects  of  inde- 
pendent and  absolute  supremacy,  the  powers  vested  in  the  Gov- 
ernment established  by  the  Constitution,  are,  in  their  exercise 
and  in  the  view  of  public  law,  supreme  and  of  the  nature  of 
sovereign  national  power  wherever  existing  ;  and  they  therefore 
act  directly,  and  without  reference  to  any  other  power,  on  all 
persons  and  things  within  their  determined  jurisdiction  or  terri- 
torial dominion.' 

§  361.  These  powers  are  not,  in  legal  consideration  at  least, 
the  less  supreme  or  sovereign  from  being  sejiarated,  in  their  ex- 
ercise, from  the  other  general  powers  of  a  national  sovereignty, 
vested  in  the  several  states  of  the  Union  f  though  in  practice 


"  1  Calhoun's  W.,  p.  1 63,"— that  the  Government  acts  as  the  Government  of  one  na- 
tion, whatever  theory  may  be  adopted  of  the  location  of  sovereign  power. 

'  The  Constitution  of  the  U.  S.  is  part  of  the  whole  law  prevailing  in  any  one 
State.  And  the  Government  of  the  U.  S.  and  that  of  the  State  are  equals  and  co-or- 
dinates therein — each  representing  sovereign  power.  (1  Calhoun's  W.,  p.  167.)  But 
this  is  perfectly  consistent  with  a  national  possession  of  those  powers  which  have  been 


DIVISION    OF    SOVEREIGN   POWERS.  425 

it  may  sometimes  be  otherwise.  The  Constitution  docs  not,  in 
malring  this  division  between  the  national  Government  and  the 
several  States,  define  the  extent  or  full  sum  of  all  the  powers 
belonging  of  right  to  a  sovereign  state  or  nation  ;  or  all  the 
power  which  such  a  state  may  rightfully  exercise  in  restraining 
the  action  of  private  persons.  And  it  is  not  here  material  to 
inquire  whether .  the  powers  vested  in  the  Government  of  the 
United  States  are  the  only  powers  belonging  to  the  united  peo- 
ple of  the  States  as  a  preexisting  political  unit  ;  or,  in  other 
words,  whether  the  entire  residue  of  sovereign  powers,  not 
granted  to  the  Government,  is,  independently  of  the  Constitu- 
tion, ultimately  vested  in  the  people  of  all  as  one,  or  in  the 
people  of  the  States  severally  :  this  depending  upon  political 
theories  of  the  antecedent  political  existence  of  the  States,  as 
before  mentioned.  It  is  sufficient  in  this  respect  for  juridical 
purposes,  that  the  tenth  Article  of  the  Amendments  declares 
that  "  the  powers  not  delegated  to  the  United  States  by  the 
Constitution  nor  prohibited  by  it  to  the  States,  are  reserved  to 
the  States  respectively  or  to  the  people."  It  has  already  been 
shown  that  since  "  the  people  "  which  in  the  Constitution  ap- 
pears as  the  delegating  or  constituting  power  had,  as  a  matter 
of  fact,  existed  in  the  political  capacity  of  the  people  of  distinct 
States,  and,  though  united  into  one  nationality,  had  always 
acted  under  forms  recognizing  such  an  existence,  the  powers 
which  are  thus  declared  to  be  reserved  "  to  the  people  "  must  be 
held  by  the  people  in  their  several  capacity,  that  is,  by  the  sev- 
eral political  persons  or  bodies  known  each  as  the  people  of  a 
State  of  the  United  States,  and  these  reserved  powers  can  there- 
fore, under  the  present  Constitution  of  sovereignty,  be  exercised 
only  by  each  singly  in  and  for  its  own  territory.  This  is  the 
necessary  inference  from  that  recognition  of  the  people  which 
must  precede  the  recognition  of  the  Constitution.' 

intrusted  to  the  Government  of  tlie  U.  S.  ;  and  it  is  not  necessary  to  deny  that  the 
latter  is  the  instrument  of  tlie  integral  American  people,  in  order  to  maintain  that  the 
powers  of  the  State  government  are  equally  sovereign  in  their  nature,  as  is  i^niil  hy  Mr. 
Calhoun,  on  p.  168:  or  to  hold,  with  his  speech  in"  the  Senate,  9th  April,  18:U,  that 
each  State  has  two  Constitutions,  i.  e.,  that  the  State  Constitution  and  the  Constitution 
of  the  U.  S.,  are  Constitutions  for  the  inhabitants  by  being  both  co-ordinately  derived 
from  the  State,  or  the  people  of  the  State. 
'  Ante,  §  343. 


426  LIBERTY    BY    LAW    OF    GOVERNMENT. 

§  362.  Tliere  are,  however,  certain  powers  belonging  to  sov- 
ereign nationality,  necessarily  existing  somewhere,  which,  if  not 
granted  to  the  Government  nor  prohibited  to  the  States,  can 
hardly  be  said  to  exist  at  all  in  the  several  States  ;  or,  if  exist- 
ing, they  are,  by  division,  very  dilFerent  in  eflfect  from  the  same 
power  used  by  the  people  nationally,  or  as  one  :  a  difference 
arising  from  physical  conditions  of  territory  and  situation.  For 
example,  the  power  to  acquire  foreign  territory  and  to  exercise 
sovereignty  over  it.  For  if  this  power  were  not  invested  in  the 
national  Government,  and  if  the  States  were  not  under  the  Con- 
stitution prevented  from  exercising  it,  yet  their  intrinsic  power 
of  acquisition  under  international  law  is  very  different  in  the 
hands  of  the  nation  acting  as  one,  and  in  the  same  people  act- 
ing as  distinct  states  for  that  end.  The  same  may  be  said  of 
that  right  possessed  by  every  national  sovereignty,  in  some 
undefined  measure,  to  change  the  Imo  of  nations,  when  applied 
in  international  law  regarded  as  a  rule  of  action  for  states,  but 
as  law  in  the  imperfect  sense.  ^ 

§  363.  The  expression  of  the  will  of  the  supreme  legislative 
authority,  not  that  will  itself,  constitutes  the  law.  From  the 
very  nature  of  sovereign  national  power,  the  law,  or  this  expres- 
sion, is  always  in  a  certain  sense  arbitrary,  that  is,  dependent  on 
that  will.  But  in  order  that  freedom,  as  the  condition  of  a 
private  person,  subject  to  that  will,  may  be  said  to  have  coex- 
istence with  law,  it  is  necessary  that  that  law  should  be  a  rule 
of  action  already  to  some  degree  fixed,  and  not  identified  with 
mere  arbitrary  will.'^  In  order  that  freedom  and  its  opposites 
may  be  legal  conditions,  there  must  be  a  previous  publication  of 
the  rules  of  action  or  the  laws  which  can  affect  freedom  of  ac- 
tion. So  far  as  liberty  consists  in  a  high  degree  of  guarantee 
against  arbitrary  rule,  in  the  sense  of  ruling  without  law,  it  is 
secured  to  all  under  the  Constitution  of  the  United  States,  in 
reference  to  the  powers  intrusted  to  the  National  Government, 
and,  to  a  less  extent,  in  reference  also  to  the  powers  of  the  sev- 


'  See  ante,  §  38. 

"  "  La  liberte,  c'est  le  droit  de  faire  tout  ce  que  les  lois  permettent." — Montesquieu. 
"  Libertas  est  potestas  faciendi  id  quod  jure  liceat." — Cicero. 


EXTENT    OF   JUDICIAL    FUNCTION.  427 

eral  States,  by  declaring  tlie  seat  or  investiture  of  all  sovereign 
political  power,  the  establishment  of  a  judiciary,  and  its  inde- 
pendence of  the  other  functions  of  government/ 

§  3G4.  From  the  two-fold  nature  of  the  Constitution,  in 
being  both  the  evidence  of  a  fact  and  also  the  promulgation  of 
a  rule  of  action,  the  question  of  the  relative  extent  of  the  judi- 
cial power  of  the  United  States  is  one  which  is,  perhaps,  essen- 
tially indeterminable.^  A  law  in  the  secondary  sense — a  state 
of  things  exists  independently  of  any  superior  cause  or  author, 
and  is  maintained  in  its  own  existence.  The  possession  of  sov- 
ereign underived  power  is  proved  by  itself  The  fact  of  that 
possession  does  not  result  from  a  rule  established  by  a  superior 
will,  but  is  proved  in  the  actual  possession  or  exercise  of  that 
power.  But  to  the  vitality  of  a  law  which  is  a  rule  of  action  a 
judicial  function  is  essential.  The  judiciary,  where  the  investi- 
ture of  power  to  promulgate  coercive  rules  of  action  for  private 
individuals  is  determined  by  a  law  in  the  primary  sense,  be- 
comes the  test  of  the  extent  of  that  power. 

The  Government  of  the  United  States  derives  all  its  powers 
from  a  knv,  properly  so  called,  contained  in  the  written  Consti- 
tution of  the  United  States.  The  exercise  of  any  powers  by 
that  Government  is,  therefore,  a  proper  subject  of  judicial  power 
proceeding  from  the  authors  of  that  law. 

On  the  other  hand  the  States,  or  the  people  of  the  several 
States,  though  not  each  severally  possessed  of  all  the  powers  of 
sovereignty,  yet  do,  according  to  the  view  hereinbefore  ex- 
pressed,^ hold  their  powers  by  right  above  law,  or  by  a  law  of 
their  existence,  which  is  law  in  the  secondary  sense  only,  and 
their  possession  of  those  powers  is  only  proved  by  the  Constitu- 
tion of  the  United  States,  as  evidence,  not  derived  from  it  as 
from  a  law  in  the  proper  sense.     But  since  the  Constitution  of 

'  So  if  the  several  States  create  law  by  their  sovereign  powers,  the  judiciary  of  each 
State  (supposing  a  republican  State  Government  to  exist,  having  the  judicial  function 
of  the  State  separately  invested)  decides  on  the  validity  of  laws  proceeding  from  the 
legislative  exercise  of  the  state  power. 

'  That  is,  its  extent  as  compared  with  other  judicial  power,  that  proceeding  from  the 
several  States.  The  extent  of  the  judicial  power  of  the  U.  S.  is  described  iu  the  Con- 
stitution, Art.  III.  sec.  2. 

'  Ante,  §  346. 


428  NATIONAL   JUDICIAL    POWER. 

the  United  States  is,  in  eaeli  State,  tlie  highest  or  ultimate  nilc 
of  positive  law  for  all  natural  persons  not  identified  witli  tlie 
possessors  of  sovereignty,'  the  judiciary,  in  applying  that  law, 
must  determine  on  tlie  powers  held  hy  the  several  States  under 
the  Constitution.  The  extent  of  the  powers  of  the  State  Govern 
ments  is,  therefore,  also  primarily,"  a  question  under  the  Con- 
stitution of  the  United  States  falling  within  the  judicial  power. 

§  365.  The  declaration,  that  the  Constitution  of  the  United 
States  is  the  supreme  law  in  each  State,  proceeds  from  the 
author  of  the  Constitution,  the  integral  people  of  the  United 
States.  This  declaration  then  has  the  force  of  law  in  each  State 
by  the  will  of  the  integral  people  of  the  United  States,  not  hy 
the  several  will  of  the  people  of  the  State.  Now,  to  the  ex- 
istence of  every  laiv,  a  judicial  function,  co-ordinate  with  the 
legislative,  is  essential.  If  the  law  is  supreme,  that  judicial 
function  is  supreme  which  emanates  from  the  author  of  the  law, 
otherwise  the  law  would  not  he  supreme.  But  the  Constitution 
of  the  United  States  is  confessed  to  be  the  supreme  and  abso- 
lute law,  in  either  characteristic,  (i.  e.,  as  a  rule  of  action  or 
evidence  of  the  location  of  power)  being  based  upon  the  will  of 
the  ultimate  possessors  of  sovereign  jjower.  If  so,  the  judicial 
power  accompanying  this  supreme  legislative  rule,  or  proceeding 
from  the  promulgators  of  the  rule,  must  also  be  supreme  wher- 
ever that  rule  has  extent. 

The  Constitution  declares  that  the  judicial  power  of  the 
United  States  shall  be  vested  in  a  certain  judiciary,^  forming 
part  of  the  Government  constituted  by  the  possessors  of  ultimate 
sovereignty.  The  judicial  power  of  the  United  States  can  be 
nothing  else  than  the  power  to  administer  judicially  that  law 
which  is  the  supreme  rule  declared  by  the  constituent  people  of 
the  United  States,  and  the  law  being  supreme  the  judicial 

'  Art.  YI ,  2d  clause,  "  This  Constitution  and  the  laws  of  the  United  States,  which 
shall  be  made  in  pursuance  thereof,  and  all  treaties  made,  or  which  shall  be  made 
under  the  authority  of  the  United  States,  shall  be  the  supreme  law  of  the  land,  and 
the  judges  in  every  state  shall  be  bound  thereby,  any  thing  in  the  constitution  or  laws 
of  any  State  to  the  contrary  notwithstanding." 

-  That  is,  when  no  reference  is  made  to  the  State  cojistitulion,  and  when  the  ques- 
tion is,  in  fact,  what  are  the  powers  of  the  constituent  people  of  a  State  ? 

»  Art.  III.,  sec.l. 


PLACE    OF    THE    JUDICIARY.  429 

power  accompanying  that  law  or  derived  from  that  people  is  su- 
preme. And  when  in  the  first  section  it  is  said,  "  the  judicial 
power  of  the  United  States  shall  he  vested  in  one  supreme  court 
and  in  such  inferior  courts  as  the  congress  may  from  time  to 
time  ordain  and  estahlish,"— though  the  word  supreme  cannot, 
in  this  connection,  be  taken  to  mean  judicial  supremacy  abso- 
lutely, or  in  reference  to  all  judicial  administration  of  the  na- 
tional jurisprudence,'  hut  evidently  designates  supremacy  rel- 
atively to  the  co-existence  of  inferior  courts  clothed  with  the 
judicial  power  of  the  United  States,  yet,  from  the  nature  of  the 
authority  on  which  that  jurisprudence  rests,  the  highest  judicial 
court  created  under  this  Constitution  is  supreme  in  all  questions 
arising  under  the  Constitution.  Its  supremacy  being  limited 
only  by  the  fact  that  the  possession  of  sovereign  powers — those 
held  by  the  United  States  and  granted  to  a  national  Government 
on  the  one  hand,  and,  on  the  other,  those  held  by  each  State 
severally — is  not  the  result  of  a  rule  contained  in  the  Constitu- 
tion, but  is  a  fact  proved  by  it. 

§^366.  The  judicial  function  of  the  Government  of  the  United 
States  determines,  therefore,  the  recognition  of  all  coercive  rules 
of  action  for  private  persons  within  the  limits  of  the  United 
States  ;  or,  is  the  final  test  of  all  action  of  that  Government  af- 
fecting liberty  or  freedom  of  action,  and  of  the  limits  of  the 
powers  remaining  in  the  several  States  to  affect  it.  That  it  has 
that  extent  is  a  necessary  inference  from  the  nature  of  the  Con- 
stitution as  law;^  and  with  reference  to  this  quality  of  the  Con- 
stitution must  the  clause  be  construed  which  defines  the  extent 
of  the  judicial  power,  "  The  judicial  power  shall  extend  to  all 
cases,  in  law  and  equity,  arising  under  this  Constitution,"- which 

*  Meaning  all  rules  which  derive  their  force  from  the  nationul  will,  though  they 
may  be  applicable  by  a  juiliciary  deriving  its  power  from  one  of  the  several  States. 

»  Ency.  Am.  VII.,  (App.  by  Judge  Story,)  pp.  .".81,  582. 

'  The  judiciary  thus  decides  on  the  powers  which  may  be  exercised  by  the  co-or- 
dinate executive  and  legislative  functionaries  of  the  national  Government,  and  by  the 
State  Governments ;  but  only  when  the  rights  and  obligations  of  private  persons,  as 
affected  by  those  powers,  come  before  it  in  a  case.  The  judiciary  camiot,  from  the 
nature  of  the  judicial  function,  decide  prospectively  on  the  powers  of  the  executive  and 
legislature  or  of  the  State  Governments.  They  must  always,  in  the  first  instance,  judge 
for  themselves,  I  Kent's  Comm.  7th  ed.  p.  497,  22d  Lect.  Curtis'  Comm.  p.  'Ji.  Ben- 
ton's Examination  of  the  Dred  Scott  case,  pp.  3,  -t.  j 


430  SUPREMACY    OF    JUDICIARY. 

must  include  questions  of  the  location  of  power,  so  far  as  it  is  a 
thing  determined  by  the  Constitution  as  a  law  in  the  primary 
sense,  or  so  far  as  it  is  distinct  from  that /ctc^  of  the  investiture 
of  original  power  of  which  the  Constitution  is  the  evidence  and 
not  the  cause. 

Since  an  essential  part  of  eveiy  judicial  act  is  to  recognize 
the  supreme  power  which  promulgates  law,  every  judicial  officer 
in  the  United  States  decides  the  constitutionality  of  any  law, 
governing  the  case  before  him,  as  legitimately  proceeding  either 
from  those  powers  which  are  vested  in  the  national  Government, 
or  those  remaining  in  a  State.  And  since  all  acts  of  power  pro- 
ceeding from  any  person  or  political  body  who  is  not  identified 
with  the  sovereign  possessor  of  the  original  power  of  the  state, 
must,  within  that  state,  be  based  on  some  law, — rule  of  action, 
and  may  be  tested  by  the  judicial  function  of  the  instrument  of 
government,  the  decision  of  the  supreme  national  judiciary  is, 
to  the  individual,  in  any  part  of  the  United  States,  the  rule  of 
his  obedience  until  one  or  the  other  of  those  possessors  of  orig- 
inal sovereign  power,  that  is,  the  United  States  or  the  single 
State  claiming  local  jurisdiction,  by  action  as  a  sovereign  above 
laio,  causes  a  difi'erent  recognition  of  the  source  of  law.  If  then 
it  is  supposed  that  a  usurpation  of  the  powers  distributed  ac- 
cording to  the  Constitution  may  occur,  either  on  the  part  of  the 
national  Government  or  of  a  State,  the  question  of  usurpation  or 
non-usurpation  is,  according  to  the  highest  laio,  now  existing,  to 
be  determined,  for  the  individual  natural  persons  concerned,  by 
the  judiciary  of  the  United  States.' 

§  367.  By  the  "judiciary"  act  of  Congress,  September  24, 
1789,  §  25,"  which  the  Supreme  Court  has  decided  to  be  consti- 

^  Bank  of  U.  S.  v.  Norton,  3  Marshall's  Ky.  R.  423;  Eraynard  v.  Marshall,  8  Pick. 
196  ;  Hempstead  r.  Reed,  G  Conn.  R.  493 :  Conimonw.  r.  Lewis,  6  Binney,  272 ;  Ew- 
bank  v.  Poston,  &c  ,  5  Munroe's  Ky.  R.  294  ;  Bodley  v.  Gaitber,  3  ofsnmf,  58;  Lessee 
of  Jackson  v.  Burns,  3  Binney,  84. 

"  "  Sec.  25.  A  final  judgment  or  decree  in  any  suit,  in  the  highest  court  of  law  or 
equity  in  a  State,  in  which  a  decision  in  the  suit  could  be  bad,  where  is  drawn  in  ques- 
tion the  validity  of  a  treaty  or  statute  of,  or  an  authority  exercised  under  the  United 
States,  and  the  decision  is' against  their  validity ;  or  where  is  drawn  in  question  the 
validity  of  a  statute  of,  or  an  authority  exercised  under  any  State  on  the  ground  of 
their  being  repugnant  to  the  Constitution,  treaties,  or  laws  of  the  United  States,  and 
the  decision  is  iu  favor  of  sucb  their  validity,  or  where  is  drawn    in  question  the  con- 


BUT    STATE    SOVEREIGNTY    RECOGNIZED.  431 

tutional/  the  power  of  testing  questions  of  constitutionality  by 
appeal  from  the  State  courts  is  given  to  the  Supreme  Court  of 
the  United  States  only  when  the  decision  of  tlic  State  court  is  in 
support  of  an  assumed  exercise  of  power  hy  the  State,  or  contrary 
to  the  power  assumed  by  the  Government  of  the  United  States  ; 
and  the  court  is  authorized  to  "  proceed  to  a  final  decision  of  the 
same  and  award  execution."  But  if  the  powers  vested  in  the 
States,  according  to  the  Constitution,  are  actually  sovereign  and 
independent,  the  decision  of  the  Supreme  Court,  in  a  supposed 
case  of  an  actual  usurpation  of  the  powers  of  the  States,  confirm- 
ing such  action  of  the  national  Government,  would  still  be  usurpa- 
tion ;  and  a  decision  against  the  assumed  exercise  of  power  by 
the  State,  in  a  case  wherein  the  actual  legitimacy  of  that  power 
is  supposed,  would  be  usurpation  in  a  negative  form  ;  and  it 
would  be  inconsistent  with  the  admitted  possession  of  its  powers 
as  powers  of  sovereignty,  to  say,  that  the  State  (i.  e.,  the  political 
person  known  as  the  State)  is  bound  to  limit  its  sovereignty  by 
that  decision.  It  would  be  denying  State  sovereignty  altogether 
to  say,  that  the  decision  of  the  Supreme  Court  would  bind  the  State 
or  the  political  people  of  that  State  (i.  e.,-  the  integral  political 
person  known  as  such)  in  all  supposable  cases.  It  would  be 
contradictory  to  say  that  a  State  of  the  Union  possesses  sovereign 
powers  as  an  independent  state,  if  an  external  tribunal  has  the 
right  to  decide  finally  what  those  powers  are.  What  a  State  of 
the  Union,  as  a  political  body  holding  sovereign  powers,  may 
rightfully  do  if  its  share  of  power  is  usurped  in  the  name  of  law 
as  judicially  recognized^  is  beyond  the  scope  of  a  legal  view  of 
the  question,  because  the  possession  of  sovereign  power  is  a  fact 
antecedent  to  laiv.  All  that  can  be  said  is,  that  so  far  as  the 
lato — the  rule  of  action  promulgated  by  the  jDcople  of  the  United 
States  in  the  Constitution — carries  us,  the  individual,  subject 
both  to  the  local  and  the  national  sovereign  powers,  is,  by  tlie 

struction  of  any  clause  in  the  Constitution,  or  of  a  treaty,  or  statute  of,  or  commission 
held  under  the  United  States,  and  the  decision  is  against  the  title,  right,  privilege,  or 
exemption,  especially  set  up  or  claimed  hy  either  party,  under  such  clause  of  the  Con- 
stitution, treaty,  statute,  or  commission,  may  be  re-exaniiued  and  reversed  or  affirmed 
in  the  Supreme  Court  of  the  United  States  upon  a  >vrit  of  error,"  &c.,  &c.,  1  Stat,  at 
Large,  83  ;  Brightly's  Dig.  259. 

*  Martin  v.  Hunter's  Lessee,  1  Wheat.  304  ;  Cohens  v.  Virginia,  G  of  same,  2C4. 


432  THE    POWER    APPLIED    TO    CASES. 

highest  known  Imo,  bound  by  the  decision  of  the  Supreme  Court. 
The  laio  can  do  nothing  in  disputes  as  to  the  possession  of  su- 
preme powers  between  those  claiming  to  be  sovereign  in  the 
mode  of  their  possession  of  those  powers.' 

§  368.  The  extent  of  judicial  pojver  vested  in  the  Government 
of  the  United  States  by  the  Constitution  is  described  by  the 
cases  which  it  may  reach,  which  are  of  two  kinds. 

First,  all  cases  arising  under  certain  laivs  ;  "  all  cases  in 
law  or  e(xuity  arising  under  this  Constitution,  the  laws  of  the 
United  States,"  (the  legislative  powers  of  the  United  States 
being  vested  in  Congress  by  Art.  I.,  sec.  1,)  ''and  the  treaties 
made,  or  which  shall  be  made  under  their  authority." 

Second,  cases  arising  between  certain  parties,  that  is,  cases 
described  by  the  parties  between  w^hom  they  arise  ;  "  all  cases 
affecting  ambassadors,  other  public  ministers  and  consuls  ;  to 
all  cases  of  admiralty  and  maritime  jurisdiction,"  (which  juris- 
diction attaches  by  the  recognition  of  persons  as  being  within 
certain  geograpliical  limits,  or  as  holding  peculiar  relations 
towards  the  Government,)  "  to  controversies  to  which  the  United 
States  shall  be  a  party,  to  controversies  between  two  or  more 
States,  between  a  State  and  citizens  of  another  State,  between 
citizens  of  different  States,  between  citizens  of  the  same  State 
claiming  lands  under  grants  of  different  States  and  citizens 
thereof  and  foreign  states,  citizens  or  subjects."  This  is  modi- 
fied, as  to  suits  against  any  one  of  the  States,  by  the  eleventh 
article  of  the  amendments  ; — "  The  judicial  power  of  the  United 
States  shall  not  be  construed  to  extend  to  any  suit  in  law  or 
equity  commenced  or  prosecuted  against  one  of  the  United 
States  by  citizens  of  any  other  State,  or  by  citizens  or  subjects 
of  any  foreign  state." 

These  last  provisions  make  no  mention  of  the  laws  affecting 
those  cases,  and  necessarily  include  the  power  of  judgment  under 
any  laws  which  may  affect  those  parties." 


'  Compare  Calhoun's  Essay  on  Const.  1  Works,  p.  340-2i4,  and  McKean,  C.  J.,  in 
3  Dallas,  473. 

'  1  Kent's  Coram.  343. 


CITIZENS   OF    THE    STATES,    WHO.  433 

§  369.  In  considering  that  extent  of  the  judicial  power  of 
the  United  States  which  is  described  by  the  clauses  of  the 
Constitution  above  cited,  it  is  farther  necessary  to  ascertain  the 
meaning  of  the  terms  a  State  and  a  citizen  of  a  State,  as  therein 
employed.  In  doing  this,  it  is  proper,  in  following  the  method 
herein  adopted  in  such  inquiries,  first  to  refer  to  existing  judi- 
cial interpretation  of  those  terms,  so  far  as  it  is  to  be  found, 
and  afterwards  to  compare  such  interpretation  with  general 
principles  ai:»plied  to  the  history  of  jurisprudence  in  this  country. 

The  words  whose  signification,  in  this  connection,  is  to  be 
ascertained  are  State  and  citizen.  With  regard  to  the  first,  it 
has  been  held  that  it  means  (here  at  least,  if  not  in  every  place 
where  it  is  used  in  the  Constitution)  one  of  those  corporate 
bodies  or  organizations  which  are  known  in  the  political  sys- 
tem of  the  United  States,  as  the  "  several  States,"  and  which, 
in  the  language  of  some  jurists  or  publicists,  are  "  members  of  the 
American  Confederacy  ;"'  or,  negatively,  that  "a  Territory"  of 
the  United  States,  or  such  a  political  district  as  the  District  of 
Columbia  is  not  a  State  within  the  meaning  of  this  clause,  and 
that,  therefore,  a  citizen  of  such  a  Territory  or  district  is  not  a 
citizen  of  a  State  under  this  clause.'^ 

§  370.  This  question  of  the  meaning  of  the  term  a  State 
arises  in  determining  the  rights  and  obligations  of  private  per- 
sons, (incident  to  personal  condition  or  status,)  as  they  depend 
upon,  or  are  created,  or  are  enforced,  by  other  clauses  in  the 

•  2  Peters'  R.  312 ;  R.  M.  Charlton's  Geo.  R.,  374. 

2  Hepburn  v.  Elzey,  2  Cranch,  452  ;  question  of  the  jurisdiction  of  U.  S.  Circuit 
Courts  under  act  of  Congress,  and  whether  a  citizen  of  the  District  of  Columbia  is  a 
citizen  of  a  State  in  view  of  those  acts.  But  the  Court,  Marshall,  C.  J.,  argues  the 
question  as  under  the  provision  in  the  Constitution,  concluding  : — "  It  is  true  that  as 
citizens  of  the  United  States  and  of  that  particular  district  which  is  subject  to  the  ju- 
risdiction of  Congress,  it  is  extraordinary  that  the  courts  of  the  United  States,  which 
are  open  to  aliens  and  to  the  citizens  of  every  State  in  the  Union,  should  be  closed  upon 
them.  But  this  is  a  subject  for  legislative  not  for  judicial  consideration."  Of  course, 
since  the  Court  decided  on  the  meaning  of  the  Constitution,  it  was  not  intended  to  say 
that  this  could  be  changed  by  legislative  action  of  Congress,  unless  by  its  proposing  an 
amendment  of  the  Constitution.  The  same  doctrine  in  reference  to  a  citizen  of  one  of 
the  Territories  of  the  United  States  was  asserted  by  the  same  court  in  Corporation  of 
New  Orleans  V.  Winter,  1  Wheaton.  91.  And  by  State  courts,  Sturges  v.  Davis,  N. 
y.  Supreme  Court,  Feb.  term,  1826,  mentioned  in  1  Paine  and  Duer's  Pract.,  p.  12, 
but  not  reported;  Hoggin  v.  Squiers,  2  Bibb,  (Ky.,)  334;  Seton  r.  Hauham.  R.  M. 
Charlton's  Geo.  R.,  374,  where  the  meaning  of  the  word  State  in  Art.  IV.,  sec.  I,  was 
considered. 

28 


434  STATE    AND    CITIZEN,    DEFINED. 

Constitution.  And  there  is  much  that  has  the  authority  of 
juridical  practice,  if  not  of  judicial  opinion,  to  show  that  the 
term  State  has  not,  in  the  various  instances  in  "which  it  is  used 
in  the  Constitution,  been  always  taken  in  this  restricted  sense, 
while,  at  the  same  time,  it  would  be  difficult  to  show  any  rea- 
son (other  than  views  of  political  expediency  remaining  unex- 
pressed in  the  breast  of  the  expounders)  why  the  term  should 
have  been  interpreted  with  more  latitude  in  one  instance  than 
in  others. 

Since  the  meaning  of  the  term  a  State,  in  those  clauses  which 
more  directly  affect  personal  condition,  will  require  considera- 
tion in  a  later  portion  of  this  treatise,  the  further  examination 
of  the  question  will  not  be  pursued  here  ;  except  in  observing, 
that  it  will  hereinafter  be  urged  that  the  interpretation  of  the 
term  may  depend  upon  the  proper  construction  of  the  clauses  or 
^  provisions  in  which  it  occurs.'  And  that,  under  the  construc- 
tion of  this  provision,  there  is  much  reason  for  maintaining,  (as 
has,  in  fact,  by  juridical  practice,  been  maintained  in  reference 
to  other  clauses  wherein  the  term  occurs,)  that  the  word  State 
should  not  here  be  restricted  to  the  organized  "  several  States  " 
alone,  but  that  it  should  be  taken  to  include  those  geograpliical 
jurisdictions,  in  and  for  which,  under  the  government  of  Con- 
gress, is  severaEy  exercised  that  portion  of  the  powers  of  sov- 
ereignty which  in  and  for  a  "several  State  '"  are  exercised  by 
the  people  of  the  State  or  by  the  State  Government.'^ 

§  371.  With  regard  to  the  term  citizen,  in  this  part  of  the 
Constitution,  it  has  been  held  in  the  recent  case  of  Dred  Scott 
V.  Sandford,  (December,  1856,)  19  Howard,  pp.  403,  427,  that 
the  question,  "  Can  a  negro,  whose  ancestors  were  imported 
into  tliis  country,  and  sold  as  slaves,  become  a  member  of  the 
political  community  formed  and  brought  into  existence  by  the 
Constitution  of  the  United  States,  and  as  such  become  entitled 
to  all  the  rights,  and  privileges,  and  immunities,  guaranteed  by 

'  It  being  supposed  that  construction  and  interpretation  are  eacli  employed,  of 
necessity,  wherever  the  meaning  of  any  written  instrument  is  to  be  ascertained.  The 
explanation  of  the  distinction  in  the  use  of  these  terms  must  likewise  be  reserved  for 
another  place. 

'  Compare  ante,  §  348.     And  see  post,  §  397. 


LIMITATION    OF    THE    TERM   CITIZEN.  435 

that  instrument  to  the  citizen,  one  of  which  rights  is  the 
privilege  of  suing  in  a  court  of  the  United  States  in  the  cases 
specified  in  the  Constitution  ?"  must  be  answered  in  the  nega- 
tive. In  other  words,  assuming  that  there  are  no  persons  of 
African  or  Ethiopian  race  or  descent,  now  domiciled  in  the 
United  States,  except  such  as  derive  their  descent,  in  whole  or 
in  part,  from  African  negroes  imported  as  slaves,  it  has  been 
held  in  the  above-named  case,  that  the  distinction  of  race, 
which  has  been  set  forth  in  some  of  the  former  chapters,  is  to 
be  considered  in  determining  the  meaning  of  the  term  citizen 
in  this  clause  of  the  Constitution  ;  and  that,  affirmatively,  only- 
whites,  or  persons  of  Caucasian  race,  can  be  such  citizens  ;  or, 
negatively,  that  no  person  of  African  or  Ethiopian  race  can  be 
such  a  citizen. 

§  372.  It  will  not  be  attempted  here  to  examine  the  cor- 
rectness of  the  proposition  above  stated  :  partly  for  a  reason 
similar  to  that  above  given  for  deferring  inquiry  into  the  mean- 
ing of  the  term  State,  viz.  :  that  the  meaning  of  the  word  citizen 
must  hereafter  be  considered  in  the  exposition  of  rights  and 
obligations  of  persons  arising  out  of  other  clauses  in  the  Consti- 
tution, more  directly  affecting  personal  condition,  in  which  also 
the  term  is  found. 

It  may,  however,  be  observed  in  reference  to  the  above 
named  decision  that  the  Court,  or  the  several  Justices  sustain- 
ing that  answer  to  the  question  propounded  by  Chief  Justice 
Taney  in  the  Opinion  of  the  Court,  seem  to  have  assumed,  as 
preliminary  to  their  inquiry,  that  in  tliis  clause  the  term  citizen 
is  used  in  one  of  its  meanings,  (a  sense  which  is  not  its  only  one 
in  vernacular  use,)  that  is,  in  the  sense  of  a  person  enjoyino-  a 
certain  condition  or  status,  manifested  in  the  exercise  of  certain 
civil  and  political  privileges  or  immunities.' 

Now,  as  has  been  herein  above  suggested  in  reference  to  the 
term  State,  it  is  here  supposed  in  reference  to  the  term  citizen, 
that  the  interpretation  of  the  term  may  depend  upon  the  con- 

'  See  Opinion  of  the  Court,  pp.  403-425  ;  Mr.  Justice  Daniel's  Opinion,  pp.  475- 
482,  particularly  p.  481,  where  the  applicability  of  the  other  meaning  of  the  term  is 
noticed  as  having  been  urged,  but  at  the  same  time  it  is  summarily  discarded. 


436  LIMITATION   OF   CITIZEN. 

struction  of  the  clause  or  provision  in  which  it  occurs,  and  that 
it  is  not  necessarily  concluded  that  the  word  has  the  same  sig- 
nification in  every  connection  in  which  it  has  heen  employed  in 
the  Constitution  ;  that,  here  the  question  is  not  so  much  one  of 
a  right  or  privilege  in  certain  legal  persons,  to  sue  and  be  sued 
in  certain  courts,  as  it  is  a  question  of  public  municipal  law,  of 
the  distribution  of  jurisdiction  or  juridical  power  ;  that  this 
clause  must  be  construed  with  reference  to  the  international 
relation  of  the  States  or  the  several  jurisdictions  (severally  un- 
der that  sovereignty  which  is  said  to  be  "  reserved  "  to  the 
States)  into  wliich  the  entire  dominion  known  as  the  United 
States  of  North  America  is  divided,  and  with  reference  to  the 
application  of  a  law  having  authority  as  national-municipal  law, 
but  operating  as  international  private  law,  (g^asi-intcrnational 
law  ;)^  that  the  object  of  the  provision  (by  construction)  being 
to  give  jurisdiction  for  the  application  of  that  law,  persons  are 
here  called  citizens  in  reference  to  that  element  in  the  defini- 
tion of  citizen  which  ordinarily  determines  questions  of  personal 
jurisdiction  in  the  application  of  international  private  law,  and 
that  this  element  has  no  reference  to  the  civil  or  political  lib- 
erty, (privileges  and  immunities  of  legal  persons,)  but  simply  to 
their  quality  of  being  legal  persons,  domiciled  in  this  or  that 
forum  of  jurisdiction.* 

The  Opinion  of  the  Court  does  not  go  to  the  extent  of  say- 
ing, that  no  person  of  African  race,  descended  from  persons  who 
had  been  introduced  into  the  country  as  slaves,  could  be  a  citi- 
zen in  this  sense.  Though  there  are  passages  in  that  Opinion 
and  in  those  of  some  of  the  associate  Justices  which  may  appear 
to  lead  to  that  among  other  unexpressed  deductions. 

In  Mr.  Justice  McLean's  brief  examination  of  this  part  of 

'  As  will  be  further  explained  in  the  next  chapter. 

^  Mr.  Justice  Curtis,  in  maintaining  views  of  the  personal  extent  of  the  term  dif- 
ferent from  that  contained  in  the  Opinion  of  the  Court,  seems  likewise  to  have  as- 
sumed that  the  word  citizen  refers  to  a  condition  of  civil  and  "political  privilege,  and 
that  it  must  be  supposed  to  have  the  same  meaning  wherever  used  in  the  Cons'titution. 

Whatever  may  have  been  the  intention,  the  reasoning  in  the  Opinion  of  the  Court 
and  in  those  of  the  Justices  who  most  fully  considered  this  question,  seems  to  have 
more  direct  bearing  on  the  use  of  the  word  in  the  Fourth  Article  of  the  Constitution. 
It  will  therefore  be  more  particularly  noted  herein,  when  considering  the  efiFect  of  the 
provisions  in  that  Article  upon  conditions  of  freedom  and  its  opposites. 


JUDICIAL    FUNCTION    OF    THE    STATES.  437 

the  case,  his  conclusion  on  this  point  seems  to  be  expressed  in 
the  following,  on  p.  531  of  the  Report : — "  It  has  never  been 
held  necessary,  to  constitute  a  citizen  within  the  act  that  he 
should  have  the  qualifications  of  an  elector.  Females  and  mi- 
nors may  sue  in  the  Federal  Courts,  and  so  may  any  individual 
who  has  a  permanent  domicil  in  the  State  under  whose  laws  his 
rights  are  protected,  and  to  which  he  owes  allegiance.  Being 
born  under  our  Constitution  and  laws,  no  naturalization  is  re- 
quired, as  one  of  foreign  birth,  to  make  him  a  citizen.  The 
most  general  and  appropriate  definition  of  the  term  citizen  is 
"a  freeman."  Being  a  freeman  and  having  his  domicil  in  a 
State  difi'erent  from  that  of  the  defendant,  he  is  a  citizen  within 
the  act  of  Congress,  and  the  courts  of  the  Union  are  open  to 
him/" 

§  373.  The  extent  of  the  judicial  power  of  the  national  Gov- 
ernment is  thus  to  be  ascertained  from  the  Constitution  of  the 
United  States.  That  of  the  judicial  power  in  each  of  the 
States  is  determined  not  only  by  its  own  several  Constitution 
but  by  the  Constitution  of  the  United  States,  which,  in  defin- 
ing the  powers  of  such  several  State,  may  be  said  to  limit  the 
State  Governments  in  each  function  :  restraining  their  power 
over  the  relations  of  private  persons,  not  only  by  its  express 
prohibitions,  but  also  by  its  requisition  or  guarantee  of  a  repub- 
lican Government.  The  extent  of  this  guarantee  can  only  be 
determined  by  general  principles  of  public  law  ;  which,  how- 
ever, from  the  historical  character  of  public  law  in  every  coun- 
try, can,  in  this,  be  determined  only  from  the  history  of  juris- 
prudence in  the  British  empire  and  in  the  United  States. 

'  According  to  a  newspaper  report,  copied  from  the  Chicago  Press  of  July  15, 
1857,  in  a  suit  in  the  U.  S.  Circuit  Court,  by  a  colored  man  of  Illinois  against  a  citi- 
zen of  Wisconsin,  the  defendant  pleaded  to  the  jurisdiction  of  the  Court  and  averred 
that  the  plaintiff  was  a  person  of  color,  to  wit,  a  negro  ;  but  the  demurrer  was  sustained 
by  Judge  McLean,  saying,  "  The  Constitution  and  the  act  of  Congress  of  1781)  give 
jurisdiction  to  the  federal  courts  between  citizens  of  dififerent  States.  In  the  sense 
used,  the  term  citizen  may  well  be  held  to  mean  free  man  who  has  a  permanent  domi- 
cil in  s^  State,  being  subject  to  its  laws  in  acquiring  and  holding  property,  in  the  pay- 
ment of  taxes  and  in  the  distribution  of  his  estate  among  his  creditors  or  to  his  heirs 
at  his  decease.  Such  a  man  is  a  citizen,  so  as  to  enable  him  to  sue,  as  I  think,  in 
the  federal  courts.  The  objection  has  never  been  made,  so  far  as  I  know  or  believe, 
to  his  right  to  sue  in  this  court,  that  he  is  not  entitled  to  vote." 


CHAPTER  XIII. 

CONDITIONS  OF    FREEDOM    AND    BONDAGE    CONSIDERED  WITH    REF- 
ERENCE   TO    THE    PUBLIC    LAW    OF    THE    UNITED    STATES. THE 

SUBJECT  CONTINUED. OF  THE  DISTRIBUTION  OR  CLASSIFICA- 
TION OF  PRIVATE  LAW,  AFFECTING  THOSE  CONDITIONS,  WHICH 
MAY   BE   MADE    UNDER    A   REFERENCE    TO   PUBLIC    LAW. 

§  374.  It  is  farther  necessary,  in  considering  the  connection 
of  freedom  and  its  opposites  with  the  public  law  of  the  Union, 
according  to  the  distinction  in  that  respect  which  was  made  in 
the  last  preceding  chapter,'  to  ascertain  the  extent  or  juris- 
diction of  all  civil  or  political  powers  within  the  dominion  of  the 
United  States.  The  extent  or  jurisdiction  of  sovereign  or  po- 
litical power,  or,  more  properly  speaking,  of  the  law  proceeding 
from  that  power,  is  either  territorial  (over  certain  territory  and 
persons  and  things  therein)  or  personal,  (over  persons  individu- 
ally, without  regard  to  the  territory  in  which  they  may  be 
found.) 

§  375.  The  jurisdiction  of  the  powers  of  the  national  Gov- 
ernment is  various  ;  being  either,  for  certain  purposes,  over  all 
the  territorial  (geographical)  dominion  of  the  United  States, 
whether  States  or  Territories,  and  over  all  persons  within  that 
dominion,  whether  also  subject  to  a  State  dominion,  or  to  the 
powers  held  by  a  State,  or  not  ;  or,  for  the  same  purposes  and 
others,  the  nature  of  each  of  which  will  be  hereinafter  considered, 
over  the  Territories,  the  District  of  Columbia,  lands  which,though 
belonging  to  the  United  States,  are  not  included  geographically 

■  Ante,  §  359. 


NATIONAL    AND    LOCAL   JURISDICTION.  439 

within  the  limits  of  a  State  dominion,  or,  being  within  one,  are 
excepted  from  its  jurisdiction,  and  over  all  persons  and  things 
therein  exclusively.  Congress  has  certain  powers  of  legislation, 
some  granted  for  certain  purposes  in  absolute  terms,  as  specific 
grants  of  power,  and  without  mention  of  limits,  which  legisla- 
tion has  a  national  extent  or  jurisdiction  without  distinction  of 
persons  or  places  ;  and  some  granted  for  certain  districts  only, 
having  only  a  local  jurisdiction.  The  judgment  of  the  national 
judiciary  is  entitled  to  recognition  and  is  to  be  enforced  wher- 
ever the  laws  which  it  asserts  have  territorial  or  personal  juris- 
diction. The  executive  power  has  equal  recognition,  because 
its  action  accompanies  the  jurisdiction  of  the  laws,  the  execution 
of  which  is  intrusted  to  it. 

§  376.  The  limits  of  the  several  States  within  which,  under 
the  Constitution,  they  or  the  people  of  each  are  to  possess  their 
separate  share  of  sovereign  powers,  have  been  determined 
as  to  some  by  the  recognition  of  their  ancient  colonial  bounda- 
ries, and  by  agreements  with  the  other  States,  or  with  the 
United  States  or  the  national  Government  ;  and  as  to  others  by 
the  legislation  of  Congress  in  their  creation  under  the  Consti- 
tution. ^  The  territory  not  known  under  the  geographical  di- 
vision of  the  several  States  (not  being  occupied  by  a  people 
known  separately  in  the  public  law  of  the  country  as  possessing 
that  separate  share  of  sovereign  powers  which,  by  that  law,  is 
cognizable  only  in  the  people  of  a  State  of  the  United  States  as  a 
definite  political  person)  must  necessarily  be  under  the  exclusive 
sovereignty  of  the  United  States,  or  the  united  people  of  all 
the  States,  in  their  integral  and  national  possession  of  sovereign 
power.  For  the  several  States,  which  before  possessed  lands  lying 
beyond  their  present  State  limits,  have  conveyed  those  lands  with 
their  right  of  dominion  or  jurisdiction  to  the  United  States,  and 
under  the  Constitution  of  the  United  States  a  single  State  can- 
not perform  those  acts  of  national  sovereignty  by  which  territory 
may,be  acquired  under  international  law.     The  nature  of  that 

'  Art  IV.  sect.  3.  "  New  States  may  be  admitted  by  the  Congress  into  this  Union ; 
but  no  new  State  shall  be  formed  or  erected  within  the'jurisdietion  of  any  other  State, 
nor  any  State  be  formed  by  the  junction  of  tv/o  or  more  States,  or  parts  of  States,  with- 
out the  consent  of  the  legislatures  of  the  States  concerned,  as  well  as  of  the  Congress. 


440  NATIONAL   MUNICIPAL    LAW. 

power  which  may  be  exercised  over  this  territory  by  the  tTnited 
States,  through  their  constituted  instruments,  must  be  deter- 
mined by  the  natural  or  necessary  law  of  nations,'  as  applied  in 
public  law  to  the  a  ction  or  mode  of  existence  of  sovereign  states  ; 
or,  by  the  reception,  interpretation,  or  application  of  that  law 
by  the  United  States  or  by  the  national  Government  as  their 
instrument  ;  the  latter  being  controlled  in  that  respect  by  the 
Constitution,  as  the  only  legislative  exposition  of  the  mode  in 
which  any  of  the  sovereign  powers  of  the  United  States  (i.  e., 
of  the  j)eople  of  the  United  States)  are  to  be  exercised.*^ 

§  377.  From  the  existence  of  this  division  of  sovereign  na- 
tional powers  to  create  law  between  the  Government  of  the 
United  States  and  the  several  States,  which  has  been  set  forth 
in  the  last  preceding  chapter,  and  from  the  difference  in  the 
territorial  jurisdiction  of  the  laws  thus  originating,  which  has 
been  above  considered,  a  distinction  may  be  made  in  the  mu- 
nicipal laws  of  the  United  States,  as  being  either  natiotial  or 
local. 

The  national  municipal  laio  of  the  United  States  thus  dis- 
tinguished is  that  which  originates  in  the  national  sovereignty  of 
the  United  States,  (people  of  the  United  States,)  and  which  has 
national  extent  and  jurisdiction  over  all  persons  and  things 
within  the  domain  of  the  United  States,  whether  States,  or  ter- 
ritory not  organized  under  a  State  sovereignty. 

'  Ante,  §49. 

«  The  doctrine  of  the  Supr.  Court,  in  Dred  Scott's  case,  19  How.  pp.  447,  449,  451, 
Opinion  of  Court,  and  cap.  3,  is  that  whether  the  power  of  Congress,  or  of  the  national 
Government,  over  the  Territories  is  derived  from  tlie  '"  ten-itory-or-other-property" 
clause,  (Art.  IV,  sec.  3,)  or  is  a  necessary  result  of  the  existence  of  that  Government 
and  of  its  relation  to  the  States  and  the  people  of  the  U.  S. — Congress  or  that  Govern- 
ment is  not  sovereign  in  a  Territory  jts  the  perple  of  a  State  are  sovereign  within  the 
limits  of  that  State,  but  that  it  is,  like  a  State  Government,  restricted  by  the  law  from 
which  it  derives  its  existence,  and  that  there  are  clauses  in  the  Const,  of  the  U.  S., 
which,  in  and  for  territory,  have  an  effect  similar  to  that  of  a  Bill  of  Rights  in  a  State 
Constitution. 

Mr.  Benton,  in  his  Examination  of  this  case,  holds  that  the  Constitution  of  the  U.  S. 
does  not  have  any  such  effect  as  private  law  in  the  Territories ;  that  no  rights  cf  private 
persons  "  can  be  exercised  under  it  witluiut  an  act  of  Congress."  See  his  introductory 
note.  The  general  doctrine  of  the  Court  may  be  admitted,  and  then  the  question  is, 
whether  the  right  of  a  master  in  respect  to  a  slave  (domiciled,  before,  in  a  slave  hold- 
ing State)  is  a  right  protected  by  the  Constitution,  thus  operating  as  a  Bill  of  Rights 
and  as  private  law.  This  is  a  distinct  question,  and  on  this  Mr.  Benton's  Examination 
has  but  little  hearing.  His  whole  argument  being  that  Congress  has  absolute  unre- 
stricted power  in  the  Territories. 


LOCAL    MUNICIPAL    LAW.  441 

The  local  municipal  laws  of  the  United  States  are  those 
which  originate  in  the  separate  sovereign  power  held  by  the 
people  of  each  State,  or  in  the  powers  of  Congress,  for  local  pur- 
poses, within  certain  limited  territory  ;  either  of  which  last  has 
only  local  or  limited  extent  and  jurisdiction  within  the  limits 
either  of  such  States  or  of  such  territory. 

§  378.  Although  this  distinction  in  the  municipal  law  is 
founded  upon  an  anterior  possession  of  sovereign  powers  proved 
or  evidenced  by  the  Constitution,^  yet,  since  the  Constitution  is 
also  itself  a  legislative  act,  and  has  universal  prevalence  and 
recognition  in  the  States  and  in  the  territory  belonging  to  the 
United  States,  as  the  supreme  rule  of  positive  law  in  public  and 
private  relations,  so  far  as  it  can  be  applied  to  those  relations, 
it  must  form  a  part  of  one  of  these  divisions  of  municipal  law ; 
that  is,  the  national  municipal  law. 

§  379.  Since  the  legislative  or  juridical  exercise  of  sovereign 
power  can  have  no  independent  force  or  authority  beyond  the 
territorial  limits  of  the  state  or  political  body  holding  that 
power,^  the  local  laws  of  the  several  States  cannot  have  any  in- 
dependent extension  or  authority  in  the  territory  of  another 
State  of  the  Union,  or  in  any  local  jurisdiction  of  the  Govern- 
ment of  the  United  States,  nor  can  the  local  laws  of  districts, 
under  the  several  jurisdiction  of  the  Government  of  the  United 
States,  have  any  such  independent  extension  and  authority  in 
the  territory  of  any  State  of  the  Union,  or  of  any  other  several 
jurisdiction  under  that  Government. 

§  380.  Though  all  positive  law  must  be  considered  as  oper- 
ative within  certain  geographicali  limits,  because  always  deriving 
its  authority  and  coercive  power  from  some  organized  political 
personality  confined  to  certain  limits  by  the  natural  or  neces- 
sary law  of  nations,  yet  persons  are  always  the  objects  of  that  > 
law,  and  the  relations  of  persons  to  each  other  and  to  things  are 
its  effects.^  Laws  may  not  only  be  distinguished  from  other 
laws  as  operating  within  various  jurisdictions,  but  also  as  having 
different  persons  for  their  object,  and  may  be  distinguished  ac- 

■  Anie,  §  331.  ^  Ante,  %  63.  '  Ante,  §  21. 


442  PLACE    OF   INTERNATIONAL   LAW. 

cording  to  the  differences  which  they  create  between  the  persons 
upon  whom  they  operate,  as  Avell  as  by  tlieir  territorial  juris- 
dictions ;  that  is,  they  may  be  considered  in  respect  to  their 
personal  jurisdiction  or  as  personal  laws.'  This  distinction  may 
also  be  made  in  the  municipal  law  of  the  United  States. 

The  laws  created  by  the  exercise  of  any  sovereign  national 
powers,  held  by  any  state  or  political  body  to  have  effect  within 
certain  territorial  limits,  may,  or  rather  must,  operate  differently 
uj^on  different  persons  within  that  territorial  jurisdiction.  The 
laws,  proceeding  from  these  sovereign  powers,  themselves  deter- 
mine, to  a  certain  degree,  their  own  different  effect  upon  different 
persons.  But  there  are  certain  general  principles  connected 
with  the  nature  of  sovereign  power,  or  the  conditions  under 
which  it  is  held  by  states  and  nations,  which,  in  every  jurisdic- 
tion, indicate  a  difference  in  the  application  of  local  laws  to  per- 
sons within  that  jurisdiction.^ 

§  381.  It  was  shown  in  the  first  chapter,  that  from  the 
existence  of  separate  possessors  of  sovereign  legislative  power, 
as  public  bodies  or  polities,  having  different  territorial  jurisdic- 
tion, and  from  the  necessary  conditions  of  human  society  and 
intercourse,  they  may,  as  separate  polities,  sustain  relations 
towards  each  other  in  the  exercise  of  that  power.  And  from 
this  necessity,  incident  to  their  existence,  and  from  the  fact  that 
there  may  be  some  relations  of  persons  to  other  persons,  and 
some  rights  of  action  arising  out  of  them,  which  cannot,  under 
all  circumstances,  be  maintained,  as  legal  rights,  by  the  distinct 
authority  of  any  single  possessor  of  that  sovereign  power,  those 
maxims,  or  rules  of  action  originate,  which  are  called  "inter- 
national law."  ^ 

It  is  a  circumstance  incident  to  the  nature  of  sovereign  na- 
tional power,  and  its  distribution  between  various  possessors, 
having,  according  to  the  mode  of  their  existence,  jurisdiction 
within  certain  territorial  limits,  that  persons  within  that  juris- 
diction, or  within  those  limits,  may  be  distinguished  as  either 
native  or  alien  subjects.     The  recognition  of  persons  as  aliens  is 

'Ante,  §§  26,  27.  '  ArUe,  %  53.  »  Ante,  §  10. 


'  PLACE   OF   INTERNATIONAL   LAW.  443 

the  recognition,  by  the  sovereign  source  of  municipal  law  in  that 
jurisdiction,  of  an  international  relation.  The  law  which  affects 
the  condition  of  the  alien  is  the  international  law  and  the  muni- 
cipal (national)  law  taken  together  ;  because  the  recognition  of 
a  person  as  alien,  and  the  discrimination  of  that  municipal 
(national)  law  which  shall  be  allowed  to  determine  his  relations 
and  rights,  (either  that  of  his  domicil  or  that  of  the  jurisdiction 
in  which  he  is  an  alien,)  is  itself  international  law ;  or,  what  is 
to  say  the  same  thing  in  different  words,  that  discrimination  is 
judicially  made,  in  the  jurisdictions  whose  tribunals  have  per- 
sonal control  over  the  alien,  according  to  principles  which,  from 
their  application,  are  called  a  law  betiveen  nations,  or  inter- 
national law  ;  though  they  rest,  for  their  legal  authority  and  coer- 
cive force  within  any  jurisdiction,  on  the  sovereign  power  which 
is  therein  the  source  of  municipal  (internal)  law. ' 

§  382.  This  international  relation  between  the  possessors  of 
sovereign  national  power  and  this  recognition  of  persons  in  an 
international  relation,  may  exist  in  reference  to  any  one  or  more 
of  the  modes  in  which  that  power  can  be  exercised.  It 
may,  therefore,  exist  between  political  bodies  which,  according 
to  the  conditions  of  their  existence,  can  exercise  sovereign 
national  power  in  some  of  its  forms  only.  Or,  which  is  to  state 
the  same  idea  in  different  words,  the  sum  of  sovereign  national 
power  held  by  any  one  nation  may  be  considered  as  consisting 
of  various  powers,  all,  or  some  only,  of  which  may  be  exercised 
by  any  speoitied  political  bodies  or  persons  ;  and  this  inter- 
national relation  may  exist  between  any  such  political  bodies 
and  any  other  such,  in  reference  to  the  exercise  of  the  powers 
so  held  by  them  ;  provided  the  powers,  so  held,  are  held  and  ex- 
ercised, as  sovereign,  or  indej)endently  of  all  exterior  authority. 

§  383.  It  being  a  basal  principle  of  the  public  municipal 
law  of  the  United  States,  which  is  proved  by  the  written  Con- 
stitution, as  the  evidence  of  a  pre-existing  fact,  that  the  sum  of 
sovereign  national  jiower  is  divided  between  the  national  Govern- 
ment and  the  several  States,  and  that  the  powers  held  by  the 

*  Ante,  §§  53,  54. 


444  NATIVES   AND    ALIENS. 

several  States  are  sovereign  in  their  nature  and  mode  of  exer- 
cise, by  each  within  its  own  jurisdiction,  they  are  to  be  consid- 
ered as  sovereign  and  independent  nationaUties  having  full  right 
to  establish  laws  for  their  own  domain  by  the  exercise  of  those 
powers.' 

§  384.  This  division  and  distribution  of  sovereign  power  in 
the  United  States  and  the  distinction  of  municipal  laws  having 
a  variety  of  territorial  jurisdiction,  necessitates  a  distinction  of 
persons  as  native  or  alien  subjects  of  these  various  jurisdictions. 

The  native  inhabitant  of  any  one  of  the  States  is  also,  of 
necessity,  subject  to  the  national  powers  vested  in  the  Govern- 
ment of  the  United  States.  But^though,  in  this  sense,  a  native 
of  the  United  States  and  subject  as  such  to  the  authority  of  the 
national  Government,  he  would,  in  every  other  State,  be  still  an 
alien  in  respect  to  the  powers  exclusively  vested  in  such  other 
State  and  the  local  law  proceeding  from  those  powers. 

Also,  since  the  national  authority,  vested  in  the  Govern- 
ment of  the  United  States,  extends  everywhere  throughout  the 
dominion  of  the  States,  he  who  by  birth  is  an  alien  to  that  na- 
tional jurisdiction,  would  be  also  such  in  regard  to  any  State  in 
the  Union. 


'  Buckner  ?'.  Finley,  2  Peters,  590.  "  For  all  national  purposes  embraced  by  the 
federal  Constitution,  the  States,  and  the  citizens  thereof  are  one,  united  under  the 
same  sovereign  authority,  and  governed  by  the  same  laws.  In  other  respects  the 
States  are  necessarily  foreign  to  and  independent  of  each  other.  Their  constitutions 
and  forms  of  government  being,  though  republican,  altogether  different,  as  are  their  laws 
and  institutions."  See  also.  Warder  v.  Arrel,  2  Wash.  298,  (Court  of  Appeals  of  Vir- 
ginia,) Washmgton,  J.,  in  Lonsdale  v.  Brown,  4  Wash.  C.  C.  p.  154,  after  speaking  of  the 
pohtical  nature  of  tlie  union  between  England  and  Scotland  says,  "  How  different  is 
the  union  of  these  States.  They  are,  in  their  separate  political  capacities,  sovereign 
and  independent  of  each  other,  except  so  far  as  they  have  united  for  their  common 
defence,  and  for  national  purposes.  They  have  each  a  Constitution  and  form  of  gov- 
ernment, with  all  the  attributes  of  sovereignty.  As  to  matters  of  national  concern, 
they  form  one  government,  are  subject  to  the  same  laws,  and  may  be  emphatically 
denominated  one  people.  In  all  other  respects,  they  are  as  distinct  as  different  forms 
of  government  and  diffei-ent  laws  can  render  them.  It  is  true  that  the  citizens  of  each 
vState  arc  entitled  to  all  the  privileges  and  immunities  of  citizens  in  every  other  State ; 
that  the  sovereignty  of  the  States,  in  relation  to  fugitives  from  justice  and  from  ser- 
vice, is  limited ;  and  that  each  State  is  bound  to  give  full  faith  and  credit  to  the 
public  acts,  records,  and  judicial  proceedings  of  the  sister  States.  But  these  privileges 
and  disabilities  are  mere  creatures  of  the  Constitution,  and  it  is  quite  fair  to  argue, 
that  the  framers  of  that  instrument  deemed  it  necessary  to  secure  them  by  express 
provisions." 

Descriptions  like  the  above  will  have  a  variety  of  significance,  according  to  the 
political  theories  of  the  reader  and  the  speaker. 


AN  INTERNATIONAL  RELATION.  445 

Under  the  municipal  (national)  law  of  the  United  States, 
there  may  therefore  be  aliens  to  the  whole  Union,  who,  in  the 
view  of  designating  them  by  brief  terms  of  description,  may  be 
termed /ore/(77i  aliens,  and  aliens  to  a  State  only,  who  may  be 
termed  domestic  aliens — a  distinction  similar  to  that  existing 
during  the  colonial  period  between  aliens  to  the  empire  and 
aliens  to  a  colony  ;^  and  the  several  States  of  the  Union  may 
sustain,  as  distinct  polities,  an  international  relation  to  each 
other,  and  to  other  possessors  of  supreme  national  power  ;  and 
the  maxims,  or  rules  of  action  constituting  international  law, 
are  appKcable  to  the  exercise  of  the  sovereign  powers  held  by 
them. 

§  385.  The  maxims  of  international  law,  public  and  private, 
applied  to  the  relations  of  the  several  States  toward  each  other, 
constitute,  therefore,  a  part  of  the  national  municipal  law  of  the 
United  States.  The  propriety  of  considering  any  law  as  being 
international,  and  at  the  same  time  a  part  of  the  national  mu- 
nicipal law,  (law  limited  to  the  territorial  extent  of  the  United 
States,)  arising  from  the  fact,  that  the  several  States  do  possess 
independent  and  sovereign  powers,  and  that  the  possession  or 
distribution  of  those  powers,  is  determined  by  the  Constitution  ; 
which  is  itself  national  municipal  law. 

§  386.  From  the  nature  of  the  political  bodies  or  persons 
upon  which  it  operates,  international  law  is  laio  only  in  an  im- 
perfect sense,  for  such  bodies  or  persons  ;  and,  in  its  effect  upon 
the  rights  and  relations  of  private  persons,  that  is,  when  it  be- 
comes private  international  law,  it  has  the  force  and  authority 
of  law  in  the  strict  sense  only  by  being  enforced  by  the  source 
of  that  municipal  (internal)  law,  whose  application  to  persons 
it  is  said  to  limit. ^ 

In  a  state  or  nation  wherein  the  sum  of  national  state  power, 
or  the  entire  sovereignty,  is  concentrated  in  one  political  unity, 
and  in  which,  of  course,  all  municipal  law  proceeds  from  one 
and  the  same  source,  the  modification  of  every  part  of  that  law 
in  reference  to  aliens,  (which  modification  is  the  private  inter- 

'  Ante,  §  231.  *  Ante,  §§  11,  12,  59. 


446  ALIENS   DISCaiMINATED, 

national  law  as  received  within  that  jurisdiction,)^  depends  upon 
one  and  the  same  possessor  of  sovereign  power.     If  within  a 
single  state  or  nationality  the  sum  of  sovereign  powers  can  be 
divided  between  different  depositories,  each  of  which  is  a  source 
of  municipal  law,  the  question  would  arise, — by  whom  is  the 
modification  of  those  laws  in  respect  to  aliens,  to  be  made  ? — 
or, — from  whom  does  the  international  law,  which  regulates  the 
application  of  those  laws  to  aliens,  proceed  ?     Within  the  limits 
of  any  one  of  the  United  States,  all  persons  are  subject  to  a 
sovereignty  divided  between  the  national  Government  and  the 
State  ;  and  each  is  a  source  of  municipal  law  for  that  jurisdic- 
tion.    The  powers  held  by  each  of  these  being  sovereign,  the 
laws  proceeding  from  each  affect,  according  to  their  purpose, 
all  persons  found  witliin  their  assigned  territorial  dominion  ; 
and  the  application  of  each  of  those  divisions  of  municipal  law 
to  the  rights  and  relations  of  aliens  would  be  fixed,  for  each,  by 
its  own  sovereign  source.     Or — to  express  the  same  somewhat 
differently, — the  international  rules  modifying  the  application  of 
either  of  these  divisions  of  municipal  law  to  the  relations  and 
rights  of  aliens,  would   be  those  allowed   by  the   originating 
source  of  that  division  of  municiijal   law.     Those  rights  and 
obligations  of  persons  which  Avere  under  the  control  of  one  of 
those  sources  of  law,  in  the  case  of  native-born  subjects,  would, 
as  rights  and  obligations  of  an  alien  subject,  be  determined  by 
the  same  power,  that  is,  the  same  source  of  law. 

§  387.  But  it  is  only  foreign  ahens,  who,  within  any  State 
of  the  Union,  are  aliens  at  the  same  time  towards  the  jurisdic- 
tion and  forum  of  each  of  these  divisions  of  municipal  law  and 
their  respective  sources.  Domestic  aliens  are  such  as  are  always 
at  the  same  time  native  or  domiciled  subjects  of  the  national 
law.  In  the  case  of  the  first,  that  is,  the  foreign  ahen,  the 
application  of  both  parts  of  the  municipal  law,  the  national  and 
the  local,  is  to  be  considered  :  in  the  case  of  the  second,  that 
is,  the  domestic  alien,  only  the  application  of  one  of  those  divi- 
sions— the  local.     This  modification  of  the  municipal  laws  of 

*  Ante,  p.  65. 


INTERNATIOlffAL    RELATIONS.  447 

the  United  States — in  their  application  to  aliens  of  either 
class — constitutes  the  private  international  law  prevailino-  in 
and  for  the  United  States  ;  being  still  law  only  in  an  imperfect 
sense,  when  distinguished,  in  respect  to  its  autJiorit//,  from  the 
municipal  law  which  it  modifies;  since  the  so-called  interna- 
tional law,  in  applying  or  restricting  the  municipal  or  local 
laws  of  any  jurisdiction,  still  derives  its  legal  force  from  the 
source  of  the  local  law, ' 

§  388.  But  although  that  appHcation  or  restriction  depends, 
for  its  ultimate  authority,  upon  the  source  of  the  municipal  law, 
it  may  also  be  made  judicially  by  rules  derived,  as  a  law  of 
natural  reason,  from  the  general  practice  of  nations,  or  from  the 
writings  of  jurists  who  have  analyzed  that  practice  and  shown 
the  mode  of  its  application  in  supposed  or  actual  cases ;  and 
as  such  may  be  distinguished,  in  any  particular  state,  from  the 
municipal  law,  in  its  origin  and  juridical  basis,  as  well  as  in  its 
operation  upon  a  particular  class  of  relations.'^ 

It  is,  however,  important  here  to  recur  to  a  distinction  in 
the  nature  and  authority  of  those  rules  of  action,  which  together 
may  be  called  private  international  law.  All  law  applying  to 
private  relations  and  personal  condition  is  in  a  great  degree 
public  as  well  as  private  law.^  Of  this  international  law,  thus 
applied  to  private  relations,  a  portion  is  preeminently  public, 
in  being  connected  with  the  very  nature  and  mode  of  existence 
of  all  sovereign  states,  or  of  all  possessors  of  sovereign  power,  as 
has  been  shown  in  the  first  chapter,  where  this  portion  has  been 
described  under  the  nature  of  "natural  or  necessary  law  of 
nations."^ 

Since,  therefore,  the  several  States  and  the  Government  of 
the  United  States  are  the  possessors  of  sovereign  powers  within 
their  determined  geographical  Kmits,  this  portion  of  interna- 
tional law  enters  of  necessity  into  the  political  Constitution  of 
the  United  States,  and  forms  a  part  of  the  national  municipal 
law,  and  is  constantly  operative. 

These  principles  or  maxims,  whether  applied  as  municipal 

'  ^-In^e,  §§  68,  G9,  74,  75.  '  Ante,  §  76. 

Anle,    §  25.  «  Ante,  §  49. 


448  INTERNATIONAL    LAWS    OF   THE    STATES. 

or  as  international  law,  are  necessarily  the  same,  or  have  the 
same  legal  force  within  the  jurisdiction  of  every  possessor  of 
sovereign  power.  But  the  actual  application  or  modification  of 
the  municipal  laws  of  any  one  jurisdiction,  when  applied  to  the 
relations  of  aliens,  is  itself  private  international  law,  (from  the 
character  of  the  persons  to  whom  it  applies,  wliich  character  is 
fixed  by  the  maxims  last  above  spoken  of,)  in  the  jurisdiction 
in  which  it  takes  place.  And  since  that  application  or  modifi- 
cation depends,  within  any  independent  jurisdiction,  upon  the 
will  of  the  sovereign  source  of  the  municipal  law  for  that  juris- 
diction, and  may  be  difiierent  in  jurisdictions  under  separate 
sovereigns,  therefore  this  portion  of  international  law  may  be 
said  to  vary  under  different  sources  of  municipal  law.  And,  in 
being  identified  in  authority  with  the  municipal  law,  it  may 
truly  be  considered  as  a  part  of  that  law  ;  though  it  arises  from 
the  fact  that  there  are  separate  possessors  of  sovereign  power 
existing  under  necessary  conditions,  and  that  there  are  actions 
and  relations  of  persons  which  cannot  continuously  exist  under 
the  exclusive  control  of  any  one  possessor  of  that  power,  and 
which  therefore  have  an  international  character.^  Now  since 
the  several  States  have  sejiarate  jurisdictions  or  domain,  in 
which  they  have  sovereign  powers  to  determine  the  relations  of 
private  persons  therein,  they  may  have  a  different  practice  in 
the  application  of  their  municipal  laws  to  aliens.  Or,  it  may 
be  said,  their  municipal  laws  may  differ  in  their  recognition  of 
the  relations  of  aliens  derived  from  other  laws.  Hence  a  por- 
tion of  the  private  international  law  may  not  only  be  different 
in  the  different  States,  but  must  be  classed  with  local  and  not 
with  national  law. 

§  389.  The  Constitution  of  the  United  States,  in  being  the 
supreme  public  law  and  the  evidence  both  of  the  location  of 
sovereign  powers  and  of  their  extent  and  limitation  in  respect 
to  private  persons  as  well  as  to  territory,  takes  eflFect  on  the 
persons,  above  described  as  aliens,  by  determining  the  sources 
(political  persons)  from  whom  the  private  international  law, 
above  defined,  shall  proceed. 

*  Anti,  §  10. 


INTERNATIONAL    LAW   OF    THE    NATION.  449 

The  Constitution  might  contain  provisions  directly  establish- 
ing the  absolute  or  the  relative  rights  of  aliens  of  either  of  the 
classes  before  described,  i.  e.,  either  foreign  ahens  or  domestic 
aliens,  and  limiting  to  that  extent  the  powers  of  the  national 
Government  or  those  of  the  several  States  to  affect  the 
legal  condition  of  such  persons.  Such  provisions  in  their  source 
and  origin  would  be  identified  with  the  national  municipal  law  ; 
though  being  founded  on  a  recognition  of  persons  as  aliens,  they 
might  be  called  a  part  of  the  private  international  law.  In 
whatever  degree  such  provisions  might  recognize  private  per- 
sons as  foreign  citizens  or  subjects — that  is;  persons  within  the 
dominion  of  the  United  States,  not  only  alien  to  the  United 
States,  but  sustaining  relations  to  foreign  states  or  nations — 
they  would  be  nothing  more,  as  a  law,  (rule  of  action),  for  the 
nation,  than  the  voluntary  reception  of  a  rule  of  international 
duty  by  the  supreme  power  of  the  nation,  and  alterable  at  its 
will. 

So  far  as  such  provisions  might  limit  the  application  of  State 
laws  to  persons  who  are  aliens,  either  foreign  or  domestic,  in  re- 
spect to  State  jurisdictions,  they  would  have  an  international 
effect  or  character  by  distinguishing  those  persons  from  native  or 
domiciled  subjects  of  those  States.  But,  being  law  throughout 
the  United  States,  independently  of  the  will  of  the  single 
States,  as  distinct  political  communities,  the  extent  or  personal 
jurisdiction  of  whose  laws  they  would  control,  they  would  be 
law  in  the  strict  and  proper  sense,  national  municipal  law — 
operating  on  all  persons  within  the  United  States,  irrespectively 
of  the  will  of  the  several  sources  of  local  municipal  law,  and 
therefore  not  international  law  between  the  States  or  for  the 
States,  in  that  imperfect  sense  of  the  tei-m  in  which  interna- 
tional law  prevails  among  independent  nationalities.' 

§  390.  Among  the  necc^ssary  incidents  of  the  existence  of 
sovereign  nations  or  states  is  the  fact  or  axiom,  (natural  or  ne- 
cessary law  of  nations,)  that  aliens,  under  any  system  of  muni- 
cipal law,  may  acquire  within  its  jurisdiction,  the  character  of 


^  Ante,  §§  10,  11,  12. 

29 


450  POWER   OVER   ALIENS    DISTRIBUTED. 

native  born  inhabitants,  by  voluntarily  abandoning  those  rela- 
tions which  they  held  under  international  law,  and,  with  the 
consent  of  the  sovereign  power  legislating  within  that  national 
jurisdiction,  passing  under  the  exclusive  control  of  its  municipal 
(internal)  law. 

This  incident  of  the  extent  or  operation  of  municipal  (na- 
tional) law  may  be  considered  with  reference  either  to  foreign  or 
to  domestic  aliens. 

§  391.  Since  within  any  State  of  the  United  States  the 
municipal  (internal)  law  jiroceeds  from  two  sources,  the  foreign 
alien  might  acquire  the  relations  of  a  native  born  citizen  under 
each  source  of  that  law.  But  in  that  case,  the  changes  of  the 
character  of  an  alien  for  that  of  a  native  inhabitant,  in  regard 
to  each  source  of  that  law,  would  not  necessarily  be  simulta- 
neous or  have  any  necessary  connection.  There  is  nothing  in 
the  nature  of  the  division  of  sovereign  powers  between  the  sev- 
eral States  and  the  national  Government,  nor  in  the  fact  that 
the  powers  held  by  each  must  be  taken  together  in  order  to 
form  the  sum  of  sovereign  national  power,  to  prevent  the  States 
from  granting,  each  within  its  own  territory^  to  an  alien  resi- 
dent any  civil  (social)  or  political  rights  wdtliin  the  scope  of  the 
relations  determined  by  their  separate  share  of  sovereignty. 
Nor  is  there  any  thing  to  prevent  the  Government  of  the 
United  States  from  granting,  within  the  several  States,  to 
foreign  aliens,  the  civil  or  political  privileges  of  a  native  of  the 
United  States  in  relations  established  under  the  supreme 
powers  held  by  itself. '  But,  from  the  sovereign  and  separate 
nature  of  the  powers  held  by  each,  neither,  without  special  pro- 
visions in  the  Constitution  to  that  effect,  could  alter  the  per- 
sonal relations  of  aliens  towards  the  powers  held  by  the  other  ; 
even  while  having  territorial  jurisdiction  over  them,  nor  give  to 
them,  in  all  respects,  the  character  of  its  own  native  bom  sub- 
jects ;  who,  by  birth,  are  equally  native  to  the  jurisdiction  of  a 
State  and  to  that  of  the  United  States.  And,  regarding  liberty 
as  consisting  in  the  possession  of  rights  under  some  possessor 
of  sovereign  power — neither  could  confer  upon  such  alien  liberty 
in  legal  relations  determined  by  the  powers  belonging  to  the  other. 


LAWS  APPLYING  TO  ALIENS.  451 

Still  less  could  a  State,  -without  agreement,  give  to  a  foreign 
alien  the  rights  of  a  native  born  inhabitant  before  the  local 
municipal  law  proceeding  from  the  separate  share  of  power  be- 
longing to  another  State. 

§  392.  Although,  upon  his  removal  into  another  State  of  the 
Union,  the  relations  of  the  native  inhabitant  of  any  one  State 
would  remain  unchanged,  under  the  national  municipal  law,  he 
would  still,  as  before  said,  be  an  alien  in  such  latter  State  to  the 
local  law.  A  State  might  receive  such  persons — domestic  aliens 
— into  the  condition  of  its  natural  born  subjects.  But  this  would 
depend  upon  its  own  will  and  election — its  own  view  of  the 
force  of  international  law,  as  law  in  the  imperfect  sense, — un- 
less the  Constitution  of  the  United  States  should  contain  pro- 
visions regulating  such  change  of  alienage  in  the  case  of  those 
persons,  and  have,  in  this  respect,  international  or  quasi-inter- 
national  effect  between  the  several  States,  with  the  authority 
and  extent  of  national  municipal  law. 

§  393.  When  the  relations  or  rights  and  obligations  of  aliens 
to  the  United  States  (foreign  aliens)  are  to  be  determined,  as  a 
topic  of  international  law,  it  is  first  to  be  inquired, — whether 
any  and  what  rights  or  relations  are  determined  for  them  by  the 
Constitution,  as  a  law  afi'ecting  the  rights  of  private  persons,  or 
as  private  law  ? 

Next :  What  are  the  relations  and  rights  of  persons  falling 
within  the  sphere  of  the  national  Government,  and  what  relations 
are  subject  to  the  remainder  of  power  vested  in  the  several 
States  ? 

And  lastly  :  What  is  the  actual  apphcation  by  the  State,  or 
by  the  national  Government,  on  either  hand,  of  its  municipal 
(internal)  laws  to  aliens  ;  or,  in  other  words,  what  is  its  accep- 
tation of  the  private  international  law  applying  to  such  aliens. 

§  394.  When  the  relations  or  rights  and  obligations  of  do- 
mestic aliens  are  to  be  determined,  it  must  first  be  inquired 
how  far  they  are  fixed  by  that  national  municipal  law  which 
applies  to  such  persons  simply  as  native  or  domiciled  inhabitants 
within  the  jurisdiction  of  the  national  power  ;  so  that,  whether 
the  person  be  domiciled  or  ahen  in  respect  to  such  State,  they 


452  QUASI-INTERNATIONAL    LAW. 

continue  the  same  in  every  State  ;  and  whether  that  national 
law  restrains  the  personal  a])plication  to  them  as  aliens  of  the 
local  laws  of  the  State  in  which  they  appear  as  aliens,  i.  e., 
whether  it  has  a  g'Mosi-international  effect  in  determining  those 
rights  ;  the  national  municipal  law  being  herein  regarded  both 
as  a  territorial  and  municipal  (internal)  law,  and  also  as  a  per- 
sonal and  international  law. 

According  to  what  has  been  before  said,  this  law  is  to  be 
found  in  the  Constitution  operating  as  private  laiv,  and  in  the 
legislation  of  Congress,  under  the  constitutional  grant  of  power 
to  legislate  for  the  entire  domain  of  the  United  States. 

§  395.  This,  as  a  law  affecting  relations  of  private  persons, 
is  always  private  law.  But  it  may  also  have,  more  or  less  de- 
cidedly, in  many  respects  (in  reference  to  many  relations),  the 
marks  of  public  law,  law  operating  on  public  or  political  per- 
sons, in  controlling  or  limiting  the  action  of  the  local  juridical 
power  of  the  State  in  reference  to  such  alien  persons  ;  either  by 
acting  immediately  on  those  persons,  and  directly  determining 
their  relations  to  other  persons,  (in  which  case  it  is  private  law,) 
or  by  first  acting  on  the  State  as  a  political  person,  and  deter- 
mining its  action  in  reference  to  such  aliens  ;  in  which  latter 
case  the  national  law  having  international  effect  is  rather  public 
law  causing  the  States  to  act  on  private  persons  :  and  the  States, 
in  their  political  capacity,  are  then  to  be  regarded  as  the  real 
subjects  of  the  rule.  Whether  there  can  be  in  the  Constitution 
any  law,  in  the  strict  and  proper  sense,  having  such  effect  or 
operation,  may  well  be  doubted.  But  it  will  be  shown  that  the 
existence  of  such  a  law  in  certain  provisions  of  the  Constitution 
has  in  some  decisions  been  assumed,  as  a  ground  of  a  legisla- 
tive power  in  Congress  in  reference  to  those  provisions. 

§  396.  If  there  are  relations  or  rights  and  obligations  of  do- 
mestic aliens  which  are  left  undetermined  by  the  national  mu- 
nicipal law,  having  this  quas i-mtemationa\  effect,  it  is  then  to 
be  inquired — what  has  been  the  actual  application  of  the  local 
municipal  law  of  the  various  States,  to  such  persons,  by  the 
States,  individually  or  severally  ?  Or, — in  another  form  of  ex- 
pression, according  to  the  definition  of  international  law  before 


LAW    IN    THE    TERRITORIES,    ETC.  453 

given — what  is  the  private  international  law  in  the  several 
States  applying  to  such  persons  : — that  law  which  is  denominat- 
ed international  from  the  character  of  the  persons  to  whom  it 
applies  ;  hut  which  is  law,  in  the  strict  sense,  only  because 
identified  in  authority  with  the  local  municipal  law  of  each 
State. 

§  397.  Since  the  Territories,  the  District  of  Columbia,  &c., 
have  not  the  political  nature  of  a  State  of  the  Union,  not  being 
inhabited  by  a  people  historically  known  as  the  people  of  a 
State  of  the  United  States,  the  totality  of  supreme  power  over 
those  Territories,  &c.,  and  the  inhabitants,  or  the  sum  of  all  the 
powers  of  a  national  sovereignty,  (which  of  necessity,  by  the 
natural  or  necessary  law  of  nations,  must  be  held  by  or  invest- 
ed in  some  political  person  or  persons,)  can  be  vested  solely  in 
the  nation, — the  people  of  the  United  States, — the  only  other 
possessor  of  sovereign  power  recognized  by  the  Constitution — 
the  evidence  of  the  possession  of  sovereign  power.'  Therefore 
the  exercise  of  any  of  the  powers  of  a  national  sovereignty  over 
those  Territories,  &c.,  is  to  be  determined  solely  by  the  Consti- 
tution, operating  as  a  public  rule  of  action,  which  can  be  the 
only  warrant  for  the  exercise  of  any  of  the  authority  possessed 
by  the  United  States  as  one  nation.* 

If  that  residue  of  sovereign  powers  which,  within  the  limits 
of  the  several  States,  is  held  by  the  people  of  each  is,  within  the 
Territories,  &c.,  of  the  United  States,  held  (by  delegation,  for  the 
United  States,  or  the  people  of  the  United  States)  by  the  na- 
tional Government  or  by  Congress,  then  those  Territories,  &c., 
may  be  considered  as  being  in  the  relative  condition  of  a  State 
of  the  Union  in  reference  to  laws  proceeding  from  the  (residu- 
ary^) class  of  powers,  so  held  by  the  national  Government  or  by 
Congress.     These  several  jurisdictions,  though  not  governed  un- 

'  Ante,  §  346. 

^Ante,  §  .376. 

'  That  is,  powers  of  the  same  kind  as  that  class  of  powers  which,  in  and  for  the 
States,  are  held  by  tlie  people  of  the  State  severally,  and  called  "  residuary "  or  "  re- 
served "  powers,  in  distinction  from  those  "granted  "  by  the  people  of  the  United  States 
to  the  National  Government.  Johnson,  .J.,  in  Am.  and  Ocean  Ins.  Cos.  r.  Canter,  1 
Peters',  .')46 ;  "  In  legislating  for  them,  [the  territories,]  Congress  exercises  the  com- 
bined powers  of  the  general  and  of  a  State  Government." 


454  NATIONAL   AND   LOCAL    LAWS. 

der  the  political  organization  known  in  the  public  municipal  law 
of  the  United  States  as  a  State  of  the  United  States,  may  have, 
or  be  under,  a  local  municipal  law,  while  they  are  at  tlie  same 
time,  also,  like  a  State  of  the  United  States,  under  the  national 
municipal  law  which,  as  private  law,  has  equal  extent  through- 
out the  whole  dominion  of  the  United  States.  And  that  local 
municipal  law  will  be,  like  the  local  law  of  the  organized  States, 
divisible,  according  to  the  domicil  or  alienage  of  the  persons  to 
whom  it  may  be  applicable,  into  municipal  (internal)  and  inter- 
national law. 

Whether  those  provisions  of  the  national  municipal  law 
which  have  the  effect  or  character  of  international  or  quasi- 
international  law  (public  and  private)  will  also  have  the  same 
effect  in  respect  to  the  Territories,  &c.,  which  they  have  in  re- 
spect to  the  organized  States,  will  depend  ujion  the  proper  con- 
struction of  those  provisions,  and  the  proper  interpretation  of 
the  terms  in  which  that  law  may  be  expressed  in  the  Consti- 
tution. 

§  398.  The  distinction  of  the  laws  of  the  United  States  into 
laws  which  are  either  national  or  local  in  their  extent,  which 
distinction  is  founded  upon  the  political  character  and  territorial 
jurisdiction  of  the  sovereign  power  from  which  they  proceed  is,  as 
has  been  shown,'  the  most  obvious  basis  for  an  analytical  distri- 
bution of  the  various  laws  which  may  affect  the  condition  of  pri- 
vate persons.  Each  of  these  two  parts  would  then  again  be  di- 
visible, in  respect  to  the  character  of  the  persons  on  whom  it 
might  operate,  into  municipal  (internal)  and  international  law. 
The  two  branches  of  international  law  which  would  thus  be 
made,  might  each  again  be  divided  with  reference  to  the  specific 
character  (in  respect  to  domicil)  of  the  alien  persons  to  whom  it 
applied,  into  that  law  which  determines  the  relations  of  "  do- 
mestic "  aliens  and  that  which  determines  the  relations  of 
"  foreign  "  aliens,  as  those  classes  of  persons  have  herein  before 
been  distinguished.^  But — from  the  mode  in  which  a  part  of 
the  private  international  law  of  any  country  is  judicially  ascer- 

■Ante,%Zn.  ^4»i^e,  §  384. 


NATIONAL    AND    LOCAL    LAWS    DIVIDED.  455 

tained,  viz.,  by  distinguishing  certain  principles  of  the  municipal 
(internal)  hiw  as  having  or  as  not  having  universal  personal 
extent  or  application,  and  from  the  fact  that  those  rules  which 
determine  the  international  relations  of  the  States,  or  their  in- 
habitants, towards  each  other  have  also  (in  being  the  law  of  one 
country  or  nation)  the  character  of  municipal  (internal)  law — it 
will  be  more  in  accordance  with  the  natural  and  historical  de- 
velopment of  the  laws  of  the  United  States,  not  first  thus  to 
distinguish  them,  according  to  their  poKtical  character  or  au- 
thority, into  national  and  local ;  but,  according  to  their  kind, 
quality,  or  effect,  and  the  character  of  the  persons  tg  whom 
they  apply,  into  municipal  (internal)  and  international  law  ; 
and  afterwards  to  subdivide  each  of  these  with  reference  to  its 
various  sources  and  territorial  jurisdiction. 

§  399.  With  reference  to  the  foregoing  considerations  of  the 
operation  of  the  public  law  of  the  United  States,  both  ia  deter- 
mining the  sources  of  legislation  and  in  having  itself  effect 
upon  the  relations  of  private  persons,  the  private  law  of  the 
United  States  may  be  classed  according  to  its  extent  or  jurisdic- 
tion over  territory  and  persons  as  either  municipal  (internal)  or 
international  law. 

§  400.  The  private  municipal  (internal)  law,  may  be 
divided,  in  respect  to  its  source  and  extent  over  territory,  into 

1.  National  municipal  (internal)  law, — contained  in  the 
Constitution  or  proceeding  from  the  general  legislative  powers 
of  Congress,  having  national  operation  and  effect  throughout  the 
dominion  of  the  United  States,  whether  States  or  Territories,  &c. 

2.  Local  municipal  (internal)  laws, — proceeding  from  the 
powers  reserved  to  the  States,  or  from  the  legislation  of  Con- 
gress over  the  Territories,  &c.,  and  having  operation  or  effect 
therein  only. 

§  401.  The  private  international  law  of  the  United  States 
may  be  divided  according  to  the  persons  upon  whom  it  operates, 
or  in  reference  to  whom  it  exists — as  either : 

1.  International  law  ap>pUcd  to  domestic  aliens — those  who, 
within  the  jurisdiction  of  a  State,  are  alien  to  it,  but  not  to  the 
jurisdiction  of  the  national  Government :  which  part  may,  in 


456  INTERNATIONAL    LAWS    DISCRIMINATED. 

distinction  from  the  other,  be  denominated  the  domestic  inter- 
national law  of  the  United  States. 

2.  International  law  aj^plied  to  foreign  aliens — those  who 
are  at  the  same  time  ahens  to  the  jurisdiction  of  the  national 
Government,  and  to  that  of  any  State  in  which  they  may  enter. 
§  402.  The  first  of  the  above  named  divisions  of  international 
law — domestic  international  laic — may  again  be  divided  in 
reference  to  its  source  and  authority  into  : 

1.  That  law  which,  though  internationaL  by  the  character 
of  the  persons  to  whom  it  applies,  is  identified  in  its  source  and 
authority  with  the  national  municipal  (internal)  law,  and  which 
therefore,  if  acting  on  private  persons,  is  law  in  the  strict  sense, 
independently  of  the  will  of  the  several  States  in  which  it  oper- 
ates ;  which  di\dsion,  in  distinction  from  the  second,  may  be 
properly  denominated  g'Masi-international  law.  This  law  is 
found  either  : 

a.  In  the  Constitution  itself  operating  as  private  law  ;  or, 
h.  In  the  legislation  of  Congress  under  the  Constitution. 
2.  That  which,  though  international  by  the  character  of  the 
persons  to  whom  it  applies,  is  identified  in  its  authority  with 
some  local  municipal  (State)  law  ;  and  which,  if  distinguished 
from  the  last  in  its  origin,  source,  or  authority,  is  not  law  in  the 
strict  sense  of  the  word. 

§  403.  The  second  of  the  above  principal  divisions  of  the 
international  law,  viz.,  that  applying  to  foreign  aliens,  may  also 
be  subdivided  into  two  parts,  according  to  the  jurisdiction  of 
that  municipal  law  in  reference  to  which  the  person  is  consid- 
ered an  alien, 

1.  That  law  which  determines  the  relations  of  foreign  aliens 
in  reference  to  the  national  municipal  law.  This,  though  inter- 
national from  the  character  of  the  persons  to  whom  it  applies, 
will  be  a  law  in  the  imperfect  sense  only  for  the  power  from 
which  the  national  municipal  law  proceeds,  and  in  legal  authori- 
ty is  identified  with  that  law. 

2.  That  law  which  determines  the  relations  of  foreign  aliens 
in  reference  to  the  local  municipal  laws  of  the  several  States. 

This  again  may  be  distinguished  either  as  : 


FREEDOM  REFERRED  TO  LAWS.  457 

a.  Law  resting  on  the  source  of  the  national  municipal  law, 
and  therefore  identified  in  authority  with  the  first  of  these  sub- 
divisions. 

h.  Law  resting  on  the  source  of  that  local  municipal  law  in 
reference  to  which  the  relations  of  the  foreign  aliens  are  consid- 
ered, and  therefore  identified  with  it  in  its  authority,  as  law  in 
the  strict  sense. 

§  404.  Wherever  sovereign  national  power  is  divided  be- 
tween difi'erent  depositories,  freedom  or  its  opposites  may  he 
considered  in  reference  to  the  action  of  each  possessor  of  any 
portion  of  that  power  :  because  every  exercise  of  power  limits 
or  extends  freedom  of  action  in  some  relation.  When  free- 
dom and  its  ojiposites  are  considered  as  legal  conditions,  con- 
sisting in  different  degrees  of  liberty  of  action  in  various  re- 
lations created  by  law,  the  whole  of  jurisprudence  is  nothing 
else  than  the  definition  of  those  conditions. 

The  further  consideration  of  freedom  and  its  opj)osites  in  the 
United  States  is  to  be  made  by  tracing  the  efiects  of  the  laws, 
included  under  the  division  above  made,  in  creating  or  sustain- 
ing rights  and  obligations  incident  to  the  condition  or  status  of 
private  persons. 


CHAPTER    XIV. 

THE  NATIONAL  MUNICIPAL  (iNTERNAL)  LAW  OF  THE  UNITED 
STATES — ITS  EFFECT  UPON  CONDITIONS  OF  FREEDOM  AND 
ITS  OPPOSITES. 

§  405.  Since  the  freedom  herein  to  be  considered  is  only 
such  legal  freedom  from  the  control  of  others  and  general  lib- 
erty of  social  action  as  includes  the  possession  of  individual 
rights  and  legal  capacity  for  the  ordinary  relative  rights  attribu- 
ted to  persons  in  a  civil  state,  and  bondage,  or  servitude  is 
viewed  as  a  condition  consisting  in  a  greater  or  less  diminution 
of  such  possession  or  capacity,  (whether  including  the  idea  of 
chattel  condition  or  not,)  the  several  divisions  of  the  private  law 
of  the  United  States,  given  in  the  preceding  chapter,  will  here- 
inafter be  regarded  in  respect  to  its  effect  on  the  possession  or 
enjoyment  of  these  rights,  or  as  forming  a  law  of  status  or  ^^er- 
S07ial  condition. 

The  first  division  of  private  municipal  law  in  the  preceding 
chapter,  was  that  called  national  municipal  law  ;  wliich  was 
defined  to  be  that  contained  in  the  Constitution,  or  proceeding 
from  the  legislative  power  of  the  national  Government,  and 
having  general  extent  and  efiect  upon  persons  and  things 
throughout  the  dominion  of  the  United  States,  whether  States 
or  Territories. 

§  406.  In  the  introductory  analysis  of  the  topics  of  the 
law,  or  of  jurisprudence,  it  was  shown  that  the  fir.st  distinction 
known  to  the  law  is  that  between  persons  and  things  ;  and 
that,  under  any  system  of  law  wherein  that  distinction  is  at- 
tached to  natural  persons,  the  attribution  of  the  'legal  character 


FREEDOM,    HOW   DESCRIBABLE.  459 

of  a  thing,  or  of  an  object  of  rights  exclusively,  is  a  denial,  in 
the  most  absolute  form,  of  liberty  of  action  under  law.  This 
distinction  being  analytically,  or  logically,  anterior  to  a  dcscrip-. 
tion  of  the  rights  of  pei'sons,  like  that  under  Blackstone's 
analysis,  and  necessarily  considered  as  a  mark  of  status  or  con- 
dition in  the  civil  law  sense  ;  which  comprises  those  legal  prin- 
ciples which  attribute  or  deny  personality  and  a  capacity  for 
legal  rights  to  human  beings.* 

All  law  is,  in  a  certain  sense,  a  limitation  of  freedom  ;'^  and 
the  national  municipal  law,  herein  before  defined,  by  creating 
rights  and  obligations  in  various  relations,  throughout  its  juris- 
diction, defines  or  limits  freedom  in  each  local  State  jurisdiction, 
as  does  also  the  local  municipal  law  of  the  State.  But  the 
establishment  of  such  a  distinction  between  natural  persons  as 
gives  to  one  the  legal  character  of  an  object,  only,  of  the  rights 
of  another,  or  even  gives  to  one  such  a  right  of  personal  control 
over  another,  as  constitutes  the  relation  of  master  and  sei-vant, 
without  the  consent  of  the  latter — even  when  his  legal  person- 
ality is  recognized,  is  the  result  of  a  single  and  distinct  exer- 
cise of  sovereign  legislative  power  ;  and  therefore  in  a  state, 
wherein  it  is  distributed  between  several  distinct  depositories, 
can  be  vested  in  one  only  of  the  possessors  of  that  kind  of 
power. 

§  407,  The  Constitution  does  not  contain  any  definition  or 
limitation,  of  the  sovereign  powers  belonging  to  a  political  state 
or  national  sovereignty.  Therefore,  according  to  the  distribu- 
tion of  sovereign  powers  contained  in  or  evidenced  by  the  Con- 
stitution which  has  been  stated  in  the  previous  chapter,  it  may 
be  inferred,  that  the  power  to  estabhsh  this  distinction  is  either 
granted  by  the  Constitution  to  the  national  Government,  or,  if 
not  prohibited  to  the  States,  remains  with  them,  as  one  of  the 

'  Ante,  §  44. 

'  Anrl,  in  a  certain  sense,  it  is  true  that  liberty  is  a  thing  impossible ;  as  said  by 
some;  Nodier's  Jean  Sbogar,  (a  novel  said  to  have  interested  Napoleon,)  oh.  13. 
Ruskin's  Seven  Lamps:  the  Lamp  of  Obedience.  Amer.  ed.,  p.  165.  The  idea  is  not 
very  new.     Eurip.  Hec.  1.  864. — 

'Ou(  (an  dvqrwv  darts  €(Tt'  tKev^epos  ... 
"H  7rA7},dos  ainhv  iroKios  ij  j/O/ua'f  ■ypa(pa\ 
Eipyovat  ;^pr)(Tdai  fxi]  Kara  yvu'iuLrii'  rpdirois. 


460  NATURAL    RIGHTS    ACKNOWLEDGED. 

reserved  powers,  spoken  of  in  the  tenth  Articlf^  of  the  Amend- 
ments. 

But  the  extent  to  which  sovereign  national  power  may  right- 
fully proceed  in  affecting  the  condition  of  individual  members 
of  society  being  taken  to  depend  upon  the  will  or  judgment  of 
the  state,  or  of  the  actiial  possessors  of  its  powers,  as  constitut- 
ing the  only  legal  test  of  the  just  and  natural  powers  of  the 
state,  it  may  first  of  all  be  questioned  whether  the  people  of 
the  United  States,  as  the  possessors  of  that  sovereign  power, 
have,  either  as  one  national  sovereignty,  or  as  different  commu- 
nities uniting  in  the  exercise  of  separate  powers,  so  limited  that 
power  ii;i  their  own  hands,  that  the  establishment  of  this  dis- 
tinction in  the  legal  condition  of  natural  persons  can  no  longer 
be  legally  considered  witliin  the  limits  of  the  highest  power 
known  (under  law)  in  the  United  States  ;  and  consequently 
may  not  be  juridically  said  not  to  exist,  either  in  the  powers  of 
the  Government  of  the  United  States,  or  among  those  of  the 
several  States.  In  other  words,  the  inquiry  may  be  made 
whether  any  recognition  has  been  made  by  the  actual  and 
ultimate  sovereign  from  whom  the  Constitution,  regarded  as 
public  and  private  law,  proceeds,  of  the  innate  and  necessary 
personality  of  all  men  ;  such  as  necessarily  attributes  to  all  a 
legal  capacity  for  rights,  opposed  to  the  condition  of  a  thing, 
and  implies  the  possession  of  individual  rights  by  all  natural 
persons,  especially  of  the  right  of  personal  liberty.  In  like 
manner  as  it  may  be  considered  acknowledged  by  all  Christian 
sovereignties,  that  each  individual  human  being  has  a  right  to 
life,  independently  of  the  will  of  the  supreme  power  of  the 
state,  which  right  is  not  to  be  infringed  except  on  forfeiture  for 
crime.  Such  an  acknowledgment  may  not  be  found  embodied 
in  specific  declarations,  but  may  justly  be  inferred  from  the 
public  action  of  Christian  states,  if  not  of  aU  nations,  to  be  re- 
ceived by  them  as  a  natural  principle.  A  similar  acknowledg- 
ment might  exist  in  regard  to  personal  liberty,  or  all  individual 
rights.  Such  declaration  could  not  indeed  coerce  with  any  legal 
force  the  supreme  national  power  ;  or,  in  the  United  States, 
the  ultimately  sovereign  people.     The  solemn  recognition  by 


WHETHER    ACKNOWLEDGED    BY    THE    CONSTITUTION.        461 

that  sovereign,  of  rights  in  individuals,  would  however  be  a 
moral  security  against  the  action  even  of  that  sovereign  power 
itself ;  being  public  expressions  of  great  principles  of  political 
ethics,  and  in  the  nature  of  a  recognition  of  natural  law,  or  of 
an  assertion  of  natural  reason  by  the  highest  earthly  authority, 
which  would  prove,  to  all  subject  to  that  power,  the  deepest  at- 
tainable basis  for  liberty  by  or  with  law.^ 

§  408.  The  written  Constitution  of  the  Government  of  the 
United  States  being  the  highest  law  known  therein,  by  being 
the  controlling  expression  of  sovereign  will,  wherever  its  provi- 
sions can  apply,  it  must  here  be  looked  to  as  the  determining 
criterion  of  what  may  be  a  principle  of  public  or  private  law. 
There  might  be,  in  the  Constitution,  declarations  which  would 
have  various  effects  as  law  upon  the  rights  of  persons,  deter- 
mining either  the  nature  and  number  of  those  rights,  (as  topics 
of  private  law,)  or  their  extent  in  reference  to  the  different  de- 
positaries of  power,  (as  topics  of  pubhc  law.)  Provisions  might 
exist  therein,  applying  to  all  or  to  some  natural  persons  within 
the  dominion  of  the  United  States,  such  as  would  necessarily 
imply  a  legal  personality,  and  capacity  for  rights  in  legal  rela- 
tions ;  or  they  might  be  such  as  would  establish  the  possession 
of  specific  rights  by  all,  or  by  some,  equivalent  to  establishing 
a  condition  of  freedom,  in  a  greater  or  less  measure,  for  all  in- 
cluded under  those  provisions. 

Provisions  having  such  effect,  as  private  law,  would  be  also 
public  law,  in  respect  to  either  or  both  of  the  two  depositaries 
of  sovereign  power  recognized  by  the  Constitution  ;  and  would 

'  Comp.  Burke  in  debate  on  India  Bill,  Pari.  Hist.,  vol.  xxxiii,  315 ;  Smith's 
Comm.,  p.  257.  M.  B.  de  Coustaiit,  CEuvres,  torn,  i,  p.  189  :  "  Sans  vouloir,  conime 
Tent  fait  trop  souvent  les  philosophes,  exagerer  I'iiifluence  de  la  verite,  Ton  peut  a(- 
firmer  que,  lorsque  de  certains  principes  sent  completemeut  et  claireineut  demoiitivs, 
ils  se  servent  en  quelque  sorte  de  garantie  a  eux-memes.  lis  se  ferment  a  I'egard  de 
r6%ndence  une  opinion  universelle  qui  bientot  est  victorleuse.  S'il  est  reconniT  que  la 
souverainete  n'est  pas  sans  bomes,  c'est-^-dire,  qu'il  n'existe  sur  la  teire  aucune 
puissance  illimitee,  nul,  dans  aucun  temps,  n'osera  rt-clamer  une  sembhible  puissance. 
L'experience  meme  le  prouve  di'j.l.  L'on  n'attribue  plus,  par  exemple,  a  la  societii 
eiitifere,  le  droit  de  vie  et  de  mort  sans  jugement.  Aussi  nul  gouvernement  moderne 
ne  pretend  exercer  un  pareil  droit.  Si  les  tyrans  des  ancicnnes  republiqucs  nous 
paraissent  bien  plus  efiri-ni-s  que  les  gouvernans  de  I'histoire  moderne,  c'est  en  partie 
i  cette  cause  qu'U  faut  I'attribuer.  Les  attentats  les  plus  monstrueux  du  dcspotisme 
d'lm  seul  furent  souvent  dus  k  la  doctrine  de  la  puissance  sans  bomes  de  tous." 


4G2  RIGHTS   AS    AGAINST    THE   GOVERNMENT. 

control  the  exercise  of  one,  or  the  other,  or  both  of  the  two 
classes  of  powers  separately  invested  in  them,  viz.  :  those  in- 
vested in  the  national  Government,  for  national  extent,  and 
those  remaining  in  the  States,  to  take  effect  within  their  local 
jurisdictions ;  or  those  invested  in  the  national  Government,  to 
act  locally  in  specified  territories. 

§  409.  In  all  states  wherein  the  mechanical  Government  is 
distinct,  in  the  mode  of  its  existence,  from  the  ultimate  national 
sovereign,  and  acts  only  in  forms  prescribed  by  public  law,  the 
constitution  of  the  Government  is,  in  itself,  to  a  greater  or  less 
degree,  a  guarantee  of  just  laws  for  the  people  governed  ;  since 
the  ordinary  instrument  of  authority  is  liable  to  control  by  the 
ultimate  sovereign,  in  case  of  an  abuse  of  the  power  intrusted 
to  it  ;  even  when  it  is  not  specified,  by  public  law  establishing 
that  form  of  Government,  wherein  such  abuse  shaU  consist ;  or, 
in  other  words,  when  the  power  intrusted  to  the  Government  to 
affect  the  rights  of  private  persons  is  not  specifically  limited. ' 
When,  by  the  constitution  of  the  Government,  its  powers  are 
limited,  or,  which  has  the  same  effect  as  public  law,  where 
rights  of  action  are  attributed  to  the  persons  governed,  as  inde- 
pendent of  the  action  of  the  Government,  the  Constitution  has 
direct  effect  as  private  law ;  and  the  rights  of  private  persons 
guaranteed  by  it,  whether  political  or  civil,  have  the  distinct 
character  of  legal  liberties,  in  being  ascertained  and  defined  by 
law  proceeding  from  the  highest  legislative  authority. 

In  making  a  grant  of  powers  to  the  national  Government, 
the  Constitution  defines  those  powers  in  specific  terms,  and  also 
limits  their  extent,  by  the  recognition  of  certain  rights  in  the 
people,  as  individuals,  who  are  to  be  subject  to  those  powers  ; 
which  provisions  are  in  that  respect  private  law,  a  law  of  pri- 
vate rights  as  well  as  pubUc  law,  because  allowing  to  all  persons, 
included  in  the  scope  of  those  provisions,  liberty,  in  certain  re- 
lations, independently  of  the  action  of  that  Government. 

§  410.  Of  this  character  are  the  first  nine  Articles  of  the 


'  But  this  can  only  be  when  precedent  and  the  possession  of  rights  under  personal 
laws  have  acquired  a  constitutional  (^insiittUional.  See  Lieber,  Civ.  Lib.  and  Self  Gov.} 
existence  in  the  national  sentiment. 


RIGHTS   GUARANTEED. 


463 


Amendments,  the  second  and  third  paragraphs  of  the  ninth  sec- 
tion of  the  first  Article,  the  third  paragraph  of  the  second  section 
and  the  wliole  of  the  third  section  of  the  third  Article.  These  pro- 
visions limit  the  powers  of  the  Government  of  the  United  States 
both  in  their  national  and  in  their  local  extent,  i.  e.,  whether 
operating  generally  in  all  the  States,  or  in  limited  territorial 
jurisdictions,'  and  are,  in  reference  to  that  Government,  of  the 

'  Dred  Scott's  case,  19  Howard,  (Opinion  of  the  Court,)  p.  447,  "  the  personal 
rights  and  rights  of  property  of  individiuil  citizens  as  secured  by  the  Constitution.  All 
•n-e  mean  to  say  on  this  point  is,  that  as  there  is  no  express  regulation  in  the  Consti- 
tution defining  the  power  which  the  General  Government  may  exercise  over  the  per- 
son or  property  of  a  citizen  in  a  territory  thus  acquij-ed,  the  court  must  necessarily 
look  to  the  provisions  and  principles  of  the  Constitution,  and  its  distribution  of  powers, 
for  the  rules  and  principles  by  which  its  decision  must  be  governed."  And  again,  on 
p.  449,  (it  being  obsers-ed  that  though  the  reference  is  to  the  powers  of  the  national 
Government  in^the  Territories,  it  is\issumed  that  the  principle  applies  throughout  the 
entire  national  domain,  whether  States  or  Territories.)  "  But  the  power  of  Congress 
over  the  person  or  property  of  a  citizen  can  never  be  a  mere  discretionaiy  power  under 
our  Constitution  and  form  of  Government.  The  powers  of  the  Government  and  the 
rights  and  privileges  of  the  citizen  are  regulated  and  plainly  defined  by  the  Constitu- 
tion itself.  And  when  the  Territory  becomes  a  part  of  the  United  States,  the  Federal 
Govennnent  enters  into  possession  in  the  character  impressed  upon  it  by  those  who 
created  it.  It  enters  upon  it  with  its  powers  over  the  citizen  strictly  defined,  and  Hm- 
ited  by  the  Constitution,  from  which  it  derives  its  own  existence,  and  by  virtue  of 
which  alone  it  continues  to  exist  and  act  as  a  Government  and  sovereignty.  It  has 
no  power  of  any  kind  beyond  it ;  and  it  cannot,  when  it  enters  a  Territory  of  the 
United  States,  put  off  its  character,  and  assume  discretionaiy  or  despotic  powers  wliich 
the  Constitution  has  denied  to  it.  It  cannot  create  for  itself  a  new  character  sepa- 
rated from  the  citizens  of  the  United  States,  and  the  duties  it  owes  them  irnder  the 
provisions  of  the  Constitution.  The  Territory  being  a  part  of  the  United  States,  the 
Government  and  the  citizen  both  enter  it  under  the  authority  of  the  Constitution,  with 
their  respective  rights  defined  and  marked  out;  and  the  Federal  Government  can  ex- 
ercise no  power  over  his  person  or  property,  beyond  what  that  instrument  confers,  nor 
lawfully  deny  any  right  which  it  has  reserved. 

"  A  reference  to  a  few  of  the  provisions  of  the  Constitution  will  illustrate  this  propo- 
sition. 

"  For  example,  no  one,  we  presume,  will  contend  thatCongress  can  make  any  law 
in  a  Territory  respecting  the  establishment  of  religion,  or  the  free  exercise  thereof,  or 
abridging  the  freedom  of  speech  or  of  the  press,  or  the  right  of  the  people  of  tlie  Ter- 
ritory peaceably  to  assemble,  and  to  petition  the  Government  for  the  redress  of  griev- 
ances.    [1st  Art.  Amend.] 

"  Nor  can  Congress  deny  to  the  people  the  right  to  keep  and  bear  arms,  [2d  Art. 
Amend.]  nor  the  right  to  trial  by  jury,  [5th  and  Gth  Art.  Amend.]  nor  compel  any 
one  to  be  a  witness  against  himself  in  a  criminal  proceeding.   [5th  Art.  Amend. ) 

"  These  powers,  and  others,  in  relation  to  rights  of  person,  which  it  is  not  necessary 
here  to  enumerate,  are,  in  c.'^: press  and  positive  terms,  denied  to  the  General  Govern- 
ment ;  and  the  rights  of  private  property  have  been  guarded  with  equal  care.  Thus 
the  riglits  of  property  are  united  with  the  rights  of  person,  and  placed  on  the  same 
ground  by  the  fifth  amendment  to  the  Constitution,  which  provides  that  no  person 
shall  be  deprived  of  life,  liberty,  and  property,  without  due  process  of  law.  [5th  Art. 
Amend.]  And  an  act  of  Congress  which  deprives  a  citizen  of  the  United  States,  cf 
his  hberty  or  property,  merely  because  he  came  himself  or  brought  his  property 
into  a  particular  Territory  of  the  I'uited  States,  and  who  had  committed  no  otf'euco 
against  the  laws,  could  hardly  be  dignified  with  the  name  of  due  process  ot  law. 

"  So,  too,  it  will  hardly  be  contended  that  Congress  could  by  law  quarter  a  soldier  in  a 


464  OF    A   BILL    OF    RIGHTS. 

nature  of  Bills  of  Rights,  as  they  have  been  long  known  to  the 
British  islands  and  the  American  colonies  ;  or  rather,  analogous 
to  such  bills,  since  they  have  a  higher  character  in  reference  to 
the  powers  of  the  Government  than  any  Bill  of  Rights  compared 
with  the  power  of  the  English  parliament ;  for,  by  the  theory  of 
the  English  law,  parliament  is  suitposed  to  be  omnipotent  in 
legislation  ;  whereas,  in  American  public  law,  these  guarantees  of 
liberty  have  an  equal  character,  as  law,  with  the  constitution  of 
the  Government,  and  are  susceptible  of  change  only  by  the 
same  power  which  created  it,  giving  to  the  liberties  so  reserved 
the  character  of  liberty  by  law,  in  the  strictest  sense  of  the  term.* 

§  411.  Of  like  character  are  those  limitations  on  the  powers 
of  the  several  States,  in  the  tenth  section  of  the  first  Article, 
prohibiting  them  from  passing  any  bill  of  attainder,  ex  post 
facto  law,  or  law  impairing  the  obligation  of  contracts  ;  and 
those  in  the  fourth  Article,  limiting  their  powers  in  certain 
5'Masi-international  relations  which  are  hereinafter  to  be  spe- 
cially considered.  i 

§  412.  The  whole  Constitution,  whether  public  or  private 
law,  partakes,  in  fact,  of  the  nature  of  a  Bill  of  Rights,  against 
the  depositaries  of  power  ;  being  intended,  by  the  express  dec- 

honse  in  a  Territory  without  the  consent  of  the  owner,  in  time  of  peace  ;  nor  in  time 
of  war,  but  in  a  manner  prescribed  by  law.  [3d  Art.  Amend.]  Nor  could  they  by 
law  forfeit  the  property  of  a  citizen  in  a  Territory,  who  was  convicted  of  treason,  for  a 
longer  period  than  the  life  of  the  person  convicted ;  [Const.  Art.  I,  sec.  1,  3d  parag. 
^rt.  Ill,  sec.  3,]  nor  take  private  property  for  public  use  without  just  compensation. 
[5th  Art.  Amend.] 

"  The  powers  over  person  and  property  of  which  we  speak  are  not  only  not  granted 
to  Congress,  but  are  in  express  terms  denied,  and  they  are  forbidden  to  exercise  them. 
And  this  prohibition  is  not  confined  to  the  States,  but  the  words  are  general,  and  ex- 
tend to  the  whole  territory  over  which  the  Constitution  gives  it  power  to  legislate,  in- 
cluding those  portions  of  it  remaining  under  Territorial  Government,  as  well  as  that 
covered  by  States.  It  is  a  total  absence  of  power  everywhere  within  the  dominion 
of  the  United  States,  and  places  the  citizens  of  a  Territory,  so  far  as  these  rights  are 
concerned,  on  the  same  footing  with  citizens  of  the  States,  and  guards  them  as  firmly 
and  plainly  against  any  inroads  which  the  General  Government  might  attempt,  under 
the  plea  of  implied  or  incidental  powers." 

'  Hoke  V.  Henderson,  2  Dev.  N.  C.  Rep.  15 ;  per  Ruffin,  C.  J.,  "  The  law  of  the 
land  in  bills  of  right  does  not  mean  merely  an  act  of  the  legislature  ;  for  that  con- 
struction would  abrogate  all  restrictions  on  legislative  authority.  The  clause  means, 
that  statutes  which  could  deprive  a  citizen  of  the  rights  of  person  or  property  without 
a  regular  trial  according  to  the  course  and  usage  of  common  law,  would  not  be  the 
law  of  the  land,  in  the  sense  of  the  Constitution." 

Also,  Virginia  Assembly  Report,  of  17i)9 ;  Randolph's  Ed.  p.  220  ;  Lessee  of  Liv- 
ingston V.  Moore,  7  Peters'  R.  and  Appendix  I ;  Jones  v.  Perry,  10  Yerger's  R.  69 ; 
4  Hill,  146. 


RIGHTS,    TO    WHOM    ATTRIBUTED.  '  465 

laration  of  the  constituting  power  in  the  preamble,  to  be  the 
means  of  "  securing  liberty  and  establishing  justice  to  the  people 
of  the  United  States  and  their  posterity."  The  grant  of  powers 
by  specification  to  Congress,  the  executive  and  the  judiciary 
department ;  the  separation  of  the  functions  of  supreme  power ; 
the  reservation  of  power  to  the  people  in  the  political  condition 
of  distinct  States  are,  as  well  as  the  provisions  above  alluded  to, 
in  their  tendency,  securities  of  liberty  to  the  people  in  various 
private  relations,  as  the  subjects  of  supreme  power,  while  at  the 
same  time  bulwarks  of  power  to  the  same  people,  politically 
united  or  separated,  as  the  ultimate  and  only  sovereign. 

§  413.  It  is  evident  that  the  attribution  of  these  rights  to 
the  people  of  the  United  States,  against  the  specified  powers 
of  the  national  Government,  is  equivalent  to  a  recognition  of 
personality  and  capacity  for  legal  rights  in  all  the  inhabitants 
of  the  dominion  of  the  United  States,  whether  States  or  Terri- 
tories, if,  by  the  word  people,  every  inhabitant  of  that  dominion 
is  intended.  These  rights  are  legally  predicable  only  of  legal 
persons,  and,  therefore,  when  so  predicated,  are  equivalent  to  an 
attribution  of  a  free  condition,  opposed  to  a  status  of  chattel 
slavery.  The  application  of  such  provisions,  as  a  personal  law, 
to  any  natural  persons  is  manifestly  incompatible  with  the  legal 
negation  of  personality,  or  the  attribution  of  that  legal  status 
which  consists  in  the  non-recognition  of  rights  before  the  su- 
preme power  of  the  state. 

In  like  manner  as  the  Constitution,  considered  as  public 
law  and  the  evidence  of  the  possession  of  sovereignty,  is  to  be 
construed  or  interpreted  by  previous  laws  and  customs,  in  order 
to  distinguish  the  persons  who  are  therein  referred  to  as  the 
constituting  people  of  the  United  States, '  so,  in  the  application 
of  these  provisions  and  the  interpretation  of  this  preamble  as 
private  law,  the  same  reference  must  be  had  to  previous  law  and 
juridical  usage,  to  determine  who  are  the  natural  persons  to 
•whom  personality  and  a  capacity  for  these  specified  rights  is  to 
be  attributed  by  the  force  of  these  terms,  as  weU  as  the  extent 


^  Ante,  i  350. 

30 


466  RIGHTS    NOT    ATTRIBUTED    TO    ALL. 

and  meaning  of  the  terms  in  which  those  rights  are  conveyed  or 
recognized. 

§  414.  In  public  law  the  people  spoken  of  in  the  instru- 
ment must  be  taken,  as  before  shown,  to  be  a  certain  political 
people  or  mass  of  individuals  politically  organized  into  existing 
States,  or  peoples  of  States,  determined  by  facts  antecedent  to 
the  Constitution,  and  so  distinguishable  from  the  mass  of  the 
inhabitants.  And,  since  the  hereditary  possession  of  civil  and 
social  liberty  under  ancient  personal  laws  Avas  an  essential  cir- 
cumstance in  determining  who  constituted  that  people,  or  the 
people  of  those  States,  liberty,  here  spoken  of,  whether  political 
or  civil,  must,  in  connection  with  private  rights,  or  as  it  forms 
the  right  of  a  private  person,  be  taken  to  be  something  depend- 
ent on  laws  and  customs,  or  something  personal  to  certain  indi- 
viduals determined  by  laws  of  descent  and  inheritance,  and  not 
predicated  of  aTl  mankind  as  innate,  or  determined  only  by  the 
fact  of  jiossessing  the  human  nature  or  form. '  It  must  be  taken 
to  be  political,  civil,  or  social  liberties,  identified  with  some 
known  legal  rights,  already  determined  by  the  municipal  and 
international  law,  or  by  common  law,  the  laiv  of  nations,  and 
colonial  or  imperial  statute  law  ;  and  to  be  liberty  consisting  in 
relations  existing  under  law,  not  a  condition  antecedent  to  law. 
The  clauses  of  the  Constitution  in  which  persons  are  spoken  of 
as  either  free  or  not  free,  and  as  held  to  service  or  labor,  are  an- 
other evidence  that  the  liberty  spoken  of  is  that  determined  by 
previous  law  and  usage.  And  since  legal  liberty  relates  to  free- 
dom of  action  as  a  right,  which,  can  legally  be  predicated  oi per- 
sons only,  if  the  liberty  spoken  of  is  dependent  on  previous  laws, 

1  "  Es  erbcii  sich  Gusetz  und  Rechte." 

However  false  may  be  the  doctrine  of  Mephistophiles,  in  his  lecture  to  the  dis- 
paragement of  jurisprudence,  it  is  not  less  true  in  America  than  in  other  countries  : — 

"  Nay,  thero,  I  think  your  judarmont  not  amiss, 
1  know,  lull  well,  what  that  Frotession  is. 
Talk  of  your  late  and  riuht !     Descend  not  these 
Like  an  inveterate  family  disease  1 
They  ;;li(ie  aluni;  from  raee  to  race, 
And  soltly  steal  from  place  to  place  ; 
r-ense  is  made  nonsense,  goodness  held  in  scorn. 
Woe  unto  thee,  that  thou  a  grandson  art ; 
Alas  I  the  rights  that  with  us  all  are  bom 
Here  of  the  question  never  form  a  part." 

Goethe's  Faust;    Talbot's  Tr, 


CONTINUATION    OF    COLONIAL   LAW.  467 

it  can  only  belong  to  those  who  were  legally,  or  by  those  laws, 
persons. 

§  415.  As  was  before  shown,  when  territories  inhabited  by  a 
people  living  in  that  social  form  which  is  known  as  a  state  among 
civihzed  nations  pass  under  the  dominion  of  new  political  sov- 
ereigns, the  laws  which  thereafter  are  in  force  in  those  territories 
are  still,  both  in  their  territorial  and  personal  extent,  those 
which  previously  existed  therein,  and  which  are  not  inconsistent 
with  the  supremacy  of  the  new  power. '  Still  more  evidently  is 
this  the  case  when  such  change  of  sovereignty  is  only  domestic  or 
civil,  and  when  the  new  depositaries  of  power  rest  their  claims 
on  the  maintenance  of  previously  existing  laws.  Unless  there- 
fore there  was  something  in  the  assumption  of  the  totality  of 
sovereign  j)Ower  by  the  people  of  the  colonies,  and  in  the  estab- 
hshment  of  the  present  public  law  of  the  United  States,  by 
which  the  foundations  of  civil  society  were  broken  up,  and  all 
rights  reinvested  on  principles  of  some  so-called  natural  law,  as 
interpreted  by  the  actors  in  the  transaction,  different  from 
the  law  of  natural  reason  juridically  declared  and  contained  in 
the  previous  law,  there  was  nothing  in  those  political  changes  to 
alter  the  condition  or  status  of  the  inhabitants  by  the  then  ex- 
isting private  law  ;  or  to  affect  rights  of  persons,  so  far  as  pri- 
vate and  not  political  or  public  ;  and  the  private  law  of  the 
Anglo-American  colonies  must  be  taken  to  have  continued  to  be 
the  law  of  the  new  States,  until  changed  by  new  legislative 
action,  according  to  the  location  of  supreme  authority  by  the 
pubhc  law,  and  the  subordinate  judicial  application  of  natural 
reason. 

§  416.  The  sovereignty  of  any  state  being,  of  necessity,  the 
first  principle  of  its  own  law,  all  propositions  necessary,  as  asser- 
tions of  fact,  to  support  that  sovereignty,  or  which  have  been 
publicly  and  authoritatively  assumed  to  support  it,  may  be  taken 
to  be  recognized  by  that  la'w\  The  act  of  the  Continental  Con- 
gress of  July  4,  1776,  declares  the  independence  or  sovereignty 
of  the  States,  or  of  the  nation  ;  but  the  propositions  advanced 

'  Ante,  §  123. 


468  DECLARATION  OF  INDEPENDENCE. 

to  justify  the  act,  in  the  statement  of  the  reasons  or  causes  in- 
ducing it,  can  have  legal  force  only  on  the  ground  of  their  neces- 
sary connection  with  it. 

The  preamble  of  the  act  of  declaration  announces  its  object 
to  be  to  set  forth  the  reasons  which  justify  the  colonies  in  sev- 
ering the  political  bonds  which  had  connected  them  with  Great 
Britain  and  in  assuming  "  an  equal  and  separate  station  among 
the  powers  of  the  earth."  It  also  contains  certain  general 
propositions,  declaratory  of  rights,  not  only  of  communities,  but 
also  of  private  individuals.  "  We  hold  these  truths  to  be  self- 
evident,  that  all  men  are  created  equal  ;  that  they  are  endowed 
by  their  Creator  with  certain  inalienable  rights  ;  that  among 
these  are  life,  liberty,  and  the  pursuit  of  happiness  ;  that  to 
secure  these  rights  governments  are  instituted  among  men,  de- 
riving their  just  powers  from  the  consent  of  the  governed  ;  that, 
whenever  any  form  of  government  becomes  destructive  of  those 
ends,  it  is  the  right  of  the  people  to  alter  or  abolish  it,  and  to 
institute  a  new  government,  laying  its  foundations  on  such  prin- 
ciples, and  organizing  its  powers  in  such  form  as  to  them  shall 
seem  most  likely  to  effect  their  safety  and  happiness." 

Although  from  the  form  of  statement  these  propositions  are 
made  a  part  of  the  foundation  for  a  declaration  of  political  in- 
dependence by  the  representatives  of  pre-existing  political  bodies, 
i.  e.,  the  States  or  colonies,  it  is  plain,  both  from  the  rest  of  the 
document  and  from  history,  that,  if  the  claims  of  those  colonies 
rested  ultimately  on  the  rights  of  private  persons  inhabiting 
their  jurisdictions,  it  was  on  those  rights  as  they  existed  by  and 
in  the  public  and  political  law,  and  as  they  were  vested  in  those 
persons  by  the  constitution  of  the  empire,  as  hereditary  and  at- 
taching to  them  in  the  character  of  members  of  existing  politi- 
cal and  civil  bodies,  and  not  in  individual  or  relative  rights  as 
attributed  by  private  law  in  social  relations  ;  and  that  if  rights 
in  that  sense  were  also  implied  in  the  argument,  it  was  not  ne- 
cessary to  refer  to  any  law  of  nature,  as  determining  private 
relations,  to  support  the  measures  of  the  revolution. 

This  further  appears  from  the  instrument  itself,  in  the  enu- 
meration of  the  acts  on  the  part  of  the  king  of  Great  Britain, 


DECLARATION  OF  INDEPENDENCE.  469 

therein  complained  of  ;  which  were  alleged  to  be  violations  of  pre- 
viously existing  laws,  public  or  private,  and  of  constitutional 
principles.  If  it  was  intended  to  argue  that  the  natural  liberty 
of  all  men,  individually  and  apart  from  all  human  laws,  gave 
them  the  right  to  resist  the  imperial  authority,  it  is  evident  that 
the  resistance  might  have  been  made  at  any  previous  time  at 
which  the  inhabitants  of  the  colonies  had  thought  proper  to 
separate  ;  which  was  never  pretended.  If  the  meaning  is  that 
the  violation  of  natural  liberty  or  of  inalienable  rights  occurred 
by  the  violation  of  the  civil  and  political  liberties  of  the  colo- 
nists, it  is  nothing  more  than  the  assertion  that  those  civil  and 
political  liberties,  as  held  by  them  under  the  public  and  private 
law,  were  such  as  the  law  of  nature  justified,  without  asserting 
that  that  law  demanded  their  extension  beyond  the  limits  as- 
signed by  existing  municipal  law  and  jiolitical  constitution.' 

§  417.  Whatever  may  be  the  true  theory  of  the  seat  of 
sovereignty,  jus  summi  imperii,  at  the  separation  of  the  colonies 
from  Great  Britain,  there,  indisputably,  was  no  grant  of  power 
to  this  Continental  Congress  to  affect  the  status  of  persons,  or  to 
alter  the  basis  of  private  law  affecting  the  rights  and  relations 
of  private  persons  as  such.*^     The  instructions  given  to  the  dele- 


*  See  1  lieber's  Civ.  Lib.  and  Self  Gov.,  278  ;  Bentham,  Principles  of  Morals  and 
Legislation,  c.  XVIL,  §  27,  note,  after  referring  to  these  expressions  in  the  declaration 
— "  Who  can  help  lamenting  that  so  rational  a  cause  should  be  rested  iipon  reasons  so 
much  fitter  to  beget  objections  than  to  remove  them  .'  But  with  men  who  are  unani- 
mous and  hearty  about  measures,  nothing  so  weak  but  may  pass  in  the  character  of  a 
reason  ;  nor  is  this  the  first  instance  in  the  world  where  the  conclusion  has  supported 
tlie  premises,  instead  of  the  premises  the  conclusion." 

'  3  Dallas'  Rep.  199,  (1796),  by  Mr.  Justice  Chase  :  "  It  has  been  inquired  what 
powers  Congress  possessed  from  the  first  ipeeting  in  September,  1774,  until  the  rati- 
fication of  the  Articles  of  Confederation  on  the  first  of  March,  1781 I 

entertain  this  general  idea  that  the  several  States  retained  all  internal  sovereignty,  and 
that  Congress  properly  possessed  the  great  rights  of  external  sovereignty." 

Compare  Mass.  Quart,  vol.  I.,  p.  482. 

It  may  be  noticed  that  this  declaration  is,  in  form,  the  statement  of  facts, — modes 
of  action,  not  rules  of  action.  It  is,  if  any  thing,  a  definition,  and  to  it  may  be  ap- 
plied a  remark  of  M.  Charles  Comte,  Trait6  de  la  Propriety,  Tom.  II.,  c.  48  :  "  Defi- 
nitions given  by  the  legislative  power  may  be  useful,  when  they  contain  a  command, 
or  a  prohibition,  or  when  their  object  is  to  determine  acts  whici)  individuals  are  bound 
to  perform,  or  to  abstain  from  :  but  when  they  have  no  otlier  object  tlian  to  make 
known  the  nature  of  things,  they  are  ui^eless  and  dangerous,  and  .should  be  left  to 
science.  In  the  doctrines  of  fact,  a  legislator  has  no  more  authority  than  a  simple 
individual,  unless  we  admit,  as  a  principle,  that  he  is  infallible."  Reddie's  Inquiries, 
Elementary,  &c.,  209. 


470  DECLARATION    OF    INDEPENDENCE. 

gates  to  the  Congress  by  the  several  colonial  conventions  and  as- 
semblies, prior  to  the  Declaration  of  Independence,  contained  an 
express  reservation  to  each  colony  of  the  sole  and  exclusive  regu- 
lation of  its  own  internal  government,  police  and  concerns  :  and 
whatever  may  have  been  the  actual  hmits  of  that  local  sover- 
eignty which  was  thus  asserted,  this  reservation  proves  that 
Congress — the  existing  organ  of  the  national  authority — had  not 
these  powers.  Nor  was  there  any  actual  exercise  of  authority, 
as  national  or  federal,  by  that  Congress,  during  its  exist- 
ence, intended  directly  to  affect  the  status  of  persons  within  the 
limits  of  State  jurisdictions,  except  in  freeing  indentured  ser- 
vants and  slaves  who  had  served  in  the  army  ;  and  that  only  by 
making  compensation  to  their  masters. 

Whatever  declarations  of  the  nature  of  supreme  power,  or 
of  the  individual  or  relative  rights  of  the  inhabitants,  may  have 
proceeded  from  that  Congress,  they  can  be  taken  to  have  legal 
authority  only  when  necessarily  assumed  as  jirinciples  justifying 
the  exercise  of  the  powers  actually  vested  in  them,  and  by  which 
they  had  a  very  limited  power  of  legislation. ' 

If  these  propositions  in  the  declaration  are  to  be  taken  in 
the  sense  of  assertions  of  the  right  of  all  mankind  to  personal 

'  The  opposite  conclusion  is  expressed  by  Mr.  Snmner  in  his  speech  in  the  U.  S. 
Senate,  Aug.  26,  1852.  "  T/iirdli/.  According  to  a  familiar  rule  of  interpretation,  all 
laws  concerning  the  same  matter,  in  pari  materia,  are  to  be  constnied  together.  By 
the  same  reason,  (he  grand  political  acts  of  the  nation  are  to  he  construed  toffether,  giving 
and  receiving  light  from  each  other.  Earlier  than  the  Constitution  was  the  Decla- 
ration of  Independence,  embodying,  in  immortal  words,  those  primal  truths  to  which 
our  country  pledged  itself  with  its  baptismal  vows  as  a  nation.  '  We  hold  these  truths 
to  be  self-evident,'  says  the  nation,  '  that  all  men  are  created  equal,  that  they  are  en- 
dowed by  their  Creator  with  certain  unalienable  rights ;  that  among  them  are  life, 
liberty,  and  the  pursuit  of  happiness ;  that  t(j  secure  these  rights  governments  are  in- 
stituted among  men,  deriving  their  just  powers  from  the  consent  of  the  governed." 
But  this  does  not  stand  alone.  There  is  another  nation.al  act  of  similar  import.  On 
the  successfid  close  of  the  revolution,  the  Continental  Congress,  in  an  address  to  the 
people,  repeated  the  same  lofty  truth.  '  Let  it  be  remembered,'  said  the  nation  again, 
'  that  it  has  ever  been  the  pride  and  the  boast  of  America,  that  (he  rights  fur  which  she 
has  contended  were  the  rights  of  human  ntture.  By  the  blessing  of  the  Author  of  these 
rights,  they  have  prevailed  over  all  opposition,  and  p"or.m  the  basis  of  thirteen  inde- 
pendent states.'  Such  were  the  acts  of  the  nation  in  its  united  capacity.  Whatever 
may  be  the  privileges  of  States  in  their  individual  capacities,  within  their  several  local 
jurisdictions,  no  power  can  be  attributed  to  the  nation,  in  the  absence  of  positive,  un- 
equivocal grant,  inconsistent  with  these  two  national  declarations.  Here,  sir,  is  the 
national  heart,  the  national  soul,  the  national  will,  the  national  voice,  which  must 
inspire  our  interpretation  of  the  Constitution,  and  enter  into  and  diffuse  itself  through 
all  the  national  legislation.     Thus  again  is  freedom  national" 


NO    UNIVERSAL    ATTRIBUTION    OF    RIGHTS.  471 

liberty  or  to  a  legal  condition  of  freedom,  and  were  as  such  un- 
necessary to  the  vindication  of  the  acts  of  the  revolutionary 
Congress,  it  is  evident  that  it  did  not  come  within  the  scope  of 
the  powers  of  that  body  to  declare  them,  and  that  they  have  no 
force  in  affecting  legal  rights,  either  in  the  general  law  of  the 
nation  or  in  that  of  the  several  States. 

§  418.  The  doctrines  of  this  state  paper,  except  in  their  con- 
nection with  political  relations,  never  obtained  the  force  of  law 
by  their  promulgation  therein,  either  in  the  national  or  State 
jurisdiction,  nor  have  any  legislative  or  judicial  authorities,  under 
the  constitutional  division  of  sovereign  powers,  ever  recognized 
the  instrument  as  aflecting  the  previous  foundation  of  the  laws 
of  personal  condition  in  this  country.  The  only  occasion  for  re- 
garding these  propositions  as  a  standard  of  conduct  for  private 
persons,  is  found  in  comparing  them  with  the  private  relations 
and  public  career  of  those  who  subscribed  them.^ 

The  same  remarks  apply  to  the  declaration  of  Congress, 
July  6,  1775,  giving  the  reasons  for  taking  up  arms  against  the 
British  Crown. 

§  419.  There  is  apparently  nothing  in  the  signification  of  the 
Constitution,  or  of  the  public  acts  of  the  people  of  the  United 
States  in  their  united  or  national  possession  of  sovereignty, 
which  can  be  justly  construed  into  a  universal  attribution  of  the 
rights  of  legal  personality,  or  a  voluntary  abnegation  of  this 
power  over  personal  condition  ;  ^  whatever  recognition  there  may 


*  No  •vmtten  declaration  of  political  principles  can  be  construed  or  interpreted  with- 
out reference  to  its  actual  correspondence  with  the  acts  and  circumstances  of  its  au- 
thors. In  1207,  at  a  time  when  the  King  of  England  was,  practically,  an  absolute 
monarch,  and  a  large  portion  of  the  community  were  in  a  state  of  villenage,  the  writs 
issued  by  Edward  I.  for  tlie  assembling  of  a  Parliament  contained  this  sentence : 
"  What  concerns  all  should  be  supported  by  all,  approved  by  all,  and  common  danger 
should  be  repelled  by  all."  From  this  public  act  some  have  argued  a  legal  right 
thereafter  to  universal  representation,  or  the  right  of  eveiy  one  ni.t  to  be  taxed  with- 
out his  consent.     See  Wade's  History  of  the  Middle  and  Working  Classes,  p.  4.50. 

'  Chief  Justice  Taney,  in  Dred  Scott's  case,  19  Howard,  pp.  409,  410,  citing  these 
clauses  in  the  declaration,  can  hardly  be  supposed  to  have  intended  to  argue  more  from 
their  existence  than  is  argued  in  the  text  above :  that  is,  only  that  they  are  not  to  be 
taken  as  a  juridical  act  altering  the  status  or  civil  condition  of  persons  of  African 
descent,  as  it  then  existed  in  the  colonies.  The  Chief  Justice  refers,  as  has  here  been 
done,  to  the  history  of  the  times  and  of  the  authors  of  the  instrument,  to  ])rove  that 
they  are  not  to  be  so  interpreted.  On  page  410 — "  It  is  necessary  to  do  this  in  order  to 
determine  whether  the  general  terms  used  in  the  Constitution  of  the  United  States,  as 


472  OBJECT    OF    THE   CONSTITUTION. 

be  in  the  same  instrument  of  rights  in  the  people,  as  certain  de- 
terminate masses  of  individuals,  by  those  provisions  which  are 
of  the  nature  of  public  and  private  laiv,  or  bills  of  rights,  and 
are  national  in  their  jurisdiction  or  extent. 

§  420.  The  object  of  the  Constitution  is  "  to  secure  liberty 
to  the  people  of  the  United  States  ; "  but  for  that  purpose  it 
establishes  a  Government,  and  invests  it  with  powers  to  act 
upon  all  persons  within  the  United  States  ;  and  at  the  same 
time  it  acknowledges  the  possession  of  the  residue  of  sovereign 
powers  to  be  in  the  several  States,  or  the  several  people  of  each 
State,  as  a  distinct  political  personality.  The  liberty  therefore 
which  is  recognized  by  the  Constitution,  in  this  declaration  of  its 


to  the  rif^hts  of  man  and  the  ritrhts  of  the  people,  was  intended  to  include  them,  or  to 
give  to  them  or  their  posterity  the  benefit  of  anv  of  its  provisions." 

But,  from  the  mode  of  statement  employed  in  the  next  sentence  of  the  Opinion,  it 
might  seem  that  the  Chief  Justice  was  not  satisfied  with  drawing  only  such  a  nfffntive 
conclusion  from  those  clauses,  but  found,  in  the  very  eapressions  themsdres,  a  direct 
averment  tliat  negroes  were  not  to  be  considered  capable  of  legal  rights,  and  even  that 
they  were  property  and  not  persons.  For,  having  on  the  preceding  pages  cited  the 
customary  and  statute  law  of  the  colonies  and  the  empire  recognizing  slavery  and  the 
civil  disabilities  of  free  negroes,  and  having,  just  before  the  sentence  above  quoted, 
said  :  "  We  refer  to  these  historical  facts  for  the  purpose  of  showing  the  fixed  opin- 
ions concenn'ng  that  race,  upon  which  the  statesmen  of  that  day  spoke  and  acted." 
He  then  (after  the  sentence  first  quoted)  says:  •'  The  language  of  the  Declaration  of 
Independence  is  equally  conclusive.     It  begins,"  &c. 

If  one  says — "  Feed  oats  to  all  my  horses," — it  might  be  shown,  aliunde,  that  he 
means  only  all  his  white  horses.  But  it  could  hardly  be  concluded  from  the  words 
themselves,  that  liis  black  horses  were  not  to  have  any.  That  the  negative  conclusion, 
in  the  text  above,  is  the  gist  of  tlie  argument  in  the  Opinion,  appears  further  from 
page  110  :  "  'Ihe  general  words  above  quoted  would  seem  to  embrace  the  whole  hu- 
man family,  and  if  they  were  used  in  a  similar  instrument  at  this  day,  would  be  so 
understood.  But  it  is  too  clear  to  dispute,  that  the  enslaved  African  race  were  not  in- 
tended to  be  included,  and  formed  no  part  of  the  people  who  framed  and  adopted  this 
declaration  ;  for,  if  the  language,  as  understood  in  that  day,  would  embrace  them,  the 
conduct  of  the  distinguished  rnen  who  framed  the  Declaration  of  Independence  would 
have  been  utterly  and  flagrantly  inconsistent  with,"  &c.  &c. 

Much  h;i5  been  -vvi-itten  respecting  ]\Ir.  JefiFerson's  claim  to  originality  in  his  part  of 
the  composition  of  the  Declaration.  But  it  may  be  noticed,  that  the  excellence  of  the 
composition  is,  precisely,  in  its  want  of  originality.  It  has  been  proved  that  the  most 
striking  expressions  were  only  adoptions  of  forms  of  speech,  which  were  familiar  to  all 
who  had  spoken  or  ivTittcn  on  the  issues  of  the  Revolution,  and  chiefly  derived  from 
the  i\Titings  of  Locke,  Shaftesbury,  Algernon  Sidney,  and  other  writers  of  similar  po- 
litical opinions  It  was,  for  this  reason,  a  successful  utterance  of  the  ideas  of  the  peo- 
ple of  the  colonies,  (whatever  may  be  thought  of  the  philosophical  accuracy  of  those 
ideas,)  and  not  to  be  construed  by  the  habits  of  thought  of  the  Committee  of  Congress 
who  reported  it.  If  it  had  been  original  with  that  Committee,  and  if  Mr.  Jefferson, 
as  is  admitted,  bore  the  principal  part  in  its  composition,  it  should  be  interpreted  by 
his  peculiar  views.  And  that  he,  individually,  gave  a  universal  personal  extent  to 
such  expressions,  irrespective  of  distinctions  of  color  or  race,  is  abundantly  proved 
from  his  written  works. 


LIBERTIES    UNDER    LAW.  473 

object,  comprehends  the  idea  of  law  as  well  as  of  liberty  ;  and 
consists  in  relations  wherein  the  right  of  one  man  is  associated 
with  the  duty  of  forbearance  in  another  ;  and  both  rij^ht  and 
duty  are  consequences  of  that  relation  of  superior  and  inferior 
which  is  implied  in  every  law,  strictly  so  called.  The  Grovern- 
ment  of  the  United  States  being  itself  subject  to  the  supreme 
power  which  establishes  the  Constitution,  the  liberty  of  indi- 
viduals recognized  by  it  may  be  said  to  consist  in  the  restraints 
on  the  Government  in  the  exercise  of  powers  vested  in  it  by  law, 
as  well  as  faculties  of  action  in  private  persons  ;  although  it  is 
not  necessary  to  infer  from  this  language  of  the  Constitution 
that  liberty  of  condition  is  promulgated  by  it  as  by  a  personal 
law  of  universal  application. 

§  421.  The  people  of  the  United  States,  the  authors  of  the 
Constitution,  may  also  in  the  same  instrument,  by  their  joint 
action,  restrain  the  exercise  of  the  powers  held  by  the  States 
severally  over  individuals  ;  constituting  therein  a  legal  liberty 
for  the  persons  subjected  to  those  powers  ;  each  State  being 
thereafter  bound  by  a  duty  of  forbearance  similar  to  that  bind- 
ing on  the  national  Government  ;  though,  from  the  intrinsic 
nature  of  its  political  existence,  that  duty,  regarded  as  duty  of 
the  State  in  its  political  capacity,  is  rather  the  consequence  of 
an  international  law  or  compact,  than  of  a  law  in  the  strict 
sense  ;  while  the  liberties  arising  from  it,  to  the  individual,  and 
the  corres})onding  duties  of  all  private  persons  are,  in  resting 
upon  the  Constitution,  of  a  truly  legal  character,  and  are  founded 
on  a  national  mumci])al  law,  binding  on  all  private  persons  as  a 
law  in  the  strict  sense. 

§  422.  The  public  law  of  the  United  States,  determining 
the  legal  extent  of  the  i)Owers  held  by  the  national  Government 
and  the  restrictions  on  the  powers  of  the  States,  is  therefore  also 
private  law  in  being  the  law  of  the  liberty  of  private  persons. 
The  liberties  of  legal  persons  which  might  be  guaranteed  by  the 
Constitution,  and  thus  rest  upon  a  law  having  both  a  territorial 
and  a  personal  extent  or  character,  are  either  ])olitical  or  civil.  ^ 

The  entire  sovereignty  of  the  United  States,  that  is,  the 
sum  of  the  sovereign  powers  held  by  the  States  both  unitedly 


474  POSSESSION   OF    POLITICAL   LIBERTY. 

and  severally,  being  recognized  in  the  Constitution  to  be  held 
by  the  people  of  those  States,  this  sovereignty  has  the  national 
character  exclusively,  as  opposed  to  a  private  character,  accord- 
ing to  the  distinction  made  in  the  use  of  those  terms  in  a  former 
chapter  ;  '  and  the  law,  in  acknowledging  that  sovereignty,  re- 
cognizes the  possession  of  political  rights  by  the  individuals  con- 
stituting the  people  ;  wliile  at  the  same  time  the  possession  of 
sovereignty  by  the  people  in  their  double  jxditical  character — 
as  one  nation,  and  as  separate  political  bodies, — is  a  fact  ante- 
cedent to  and  lying  at  the  foundation  of  all  law  in  the  primary 
sense, — all  rules  of  action  to  be  judicially  recognized  in  this 
country  as  the  positive  law.  The  possession  of  those  rights  con- 
stitutes liberty  in  one  of  its  forms  of  existence,  viz.,  political 
liberty,  as  before  defined  ; '  and  is  necessarily  a  private  right  in 
individuals,  i.  e.,  the  right  of  a  private  person. 

But  in  considering  freedom  of  action  in  civil  or  social  rela- 
tions, as  a  topic  of  private  law,  political  liberty  needs  not  to  be 
farther  considered  except  so  far  as  it  is  connected  with  civil 
liberty  in  being,  necessarily,  a  legal  attribution  of  the  capacity 
for  the  rights  of  a  legal  person,  and  inconsistent  with  the  con- 
dition of  a  thing,  or  of  the  ohject  of  the  rights  of  others  ;  and 
also  in  supposing,  in  its  possessors,  a  legal  liberty  of  choice  and 
action  totally  incompatible  with  the  existence  of  an  involuntary 
subjection,  in  social  relations,  to  another  person.  This  political 
liberty,  as  the  right  of  the  individual  member  of  the  civil  state, 
is  determined  by  some  law,  in  the  proper  and  ordinary  sense  ; 
and,  for  the  present  purpose,  the  most  essential  consideration  in 
regard  to  it  is  the  foundation  upon  which  it  rests,  in  the  public 
law  of  the  United  States  ;  or  the  location  of  that  power  of  sov- 
ereignty which  originates  that  political  right. 

§  423.  If  the  possession  of  political  liberty  by  individuals  is 
not  fixed,  in  the  Constitution,  by  the  national  exercise  of  this 
power  on  the  part  of  the  people  of  the  United  States,  (that  is, 
by  private  law  contained  in  the  Constitution,)  it  must,  under 
the  constitutional  distribution  of  power,  be  vested  either  in  the 

'  ^n<e,  §  354  and  note.  =■  .4«<e,  §  352. 


ITS   POSSESSION,    HOW   DETERMINED.  475 

national  Government  or  in  the  several  States.  But  though  the 
possession  of  political  rights  by  individuals  is  a  fact  which  enters 
into  the  actual  continuation  of  the  national  Government,  and 
the  exercise  of  those  sovereign  powers  in  and  by  the  Constitution 
which,  by  the  force  of  such  exercise,  constitute  the  people  of  the 
several  States  into  one  nation  or  state  among  the  other  "  powers 
of  the  eartli,"  there  is  nothing  in  the  Constitution  itself  which 
determines  who  are  the  individuals  that  are  to  constitute  the 
political  people  of  that  nation,  or  who  are,  in  other  words,  to 
enjoy  this  liberty  of  action,  in  respect  either  to  the  political 
existence  of  the  nation,  or  that  of  the  several  States.  The 
only  provisions  in  the  Constitution  which  directly  affect  political 
rights  or  privileges,  are  those  which  limit  the  qualifications  for 
office,  or  determine  political  capacities  in  respect  to  the  organ- 
ization of  the  national  Government.  These,  in  determining  the 
instruments  of  supreme  power,  or  the  persons  to  whom  it  shall 
be  intrusted,  are  public  law  as  well  as  a  law  determining  the 
rights  of  private  individuals  ;  and,  though  they  are  material  for 
securing  political  freedom  to  the  people  of  the  United  States  in 
their  character  of  an  embodied  state  or  nationality,  or,  in  other 
words,  for  maintaining  the  national  possession  of  sovereignty  in  its 
present  form,  and  hence,  derivatively,  for  securing  all  individual 
freedom  of  action,  they  are  not  necessary  to  be  here  considered. 

§  424.  Since  therefore  the  possession  of  those  rights  of  action 
which  constitute  political  freedom  in  private  persons  nmst  be 
determined  by  some  who  are  vested  with  sovereign  power,  the 
power  to  determine  that  possession  must  either  be  vested  in 
Congress  or  be  reserved  to  the  States  respectively,  or  the  people 
of  those  States,  as  together  exercising  the  sum  of  sovereign 
legislative  power  not  already  exercised  in  the  Constitution. 

If  the  term  "  republican  goverament"  implies  the  jjossession  of 
political  liberties  by  any  of  those  who  are  also  individually  sub- 
ject to  the  supreme  power  of  the  state,  the  provision  in  the  Con- 
stitution that  the  United  States  shall  guarantee  to  every  State 
of  the  Union  a  republican  form  of  government,'  taken  in  con- 

'  Art.  rV.  Sec.  4 :  "  The  United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  government." 


476  POWERS   LEFT    WITH    THE    STATES. 

nection  with  the  legislative  powers  vested  in  Congress,  gives  to 
the  national  Government,  as  tlie  sole  representative  of  the 
United  States,  some  power  to  maintain  in  each  State  the 
political  liberties  of  the  individuals  constituting  the  people  of 
that  State.  But  there  is  no  power  given  to  Congress  to  deter- 
mine within  a  State,  by  a  personal  law,  any  specific  possession 
of  political  rights,  not  even  in  the  power  to  pass  naturalization 
laws,  tliat  is,  laws  by  which  aliens  to  the  dominion  of  tlie  United 
States  shall  acquire  the  rights  of  a  person  born  within  that  do- 
minion. The  possession  of  political  liberty,  as  the  right  of  a  pri- 
vate person,  is  therefore,  within  each  of  the  several  States,  de- 
termined, as  an  element  of  the  political  constitution  both  of  the 
State  and  of  the  United  States,  by  the  will  of  that  body  of  per- 
sons known  as  being,  by  the  present  possession  and  exercise  of 
power,  the  political  people  of  that  State.  They  have  the  right 
to  abridge  or  extend  at  their  will  the  enjoyment  of  political 
liberty  by  individual  inhabitants  of  their  territory  ;  subject  only 
to  the  eifect  of  the  provision  for  a  republican  government,  and 
to  those  provisions  of  a  g'?<as4-international  character  which 
limit  the  power  of  the  State  over  persons  who  are  alien  to  their 
several  jurisdiction. 

Whatever  may  be  the  principles  affecting  the  possession  of 
political  liberties  by  individuals,  which  natural  reason  and  po- 
litical right  (ethics)  require  to  be  observed  in  states  and  nations, 
the  juridical  recognition  of  those  principles, — whether  they  can 
be  called  doctrines  of  a  historically  known  law  of  nations — uni- 
versal jurisprudence — or  not,  is  dependent  on  the  sanction  of 
the  sovereign  power  vested  in  the  several  States  ;  except  as 
affected  by  the  above  described  provisions  of  the  Constitution, 

§  425,  The  provisions  of  the  Constitution,  before  referred  to, 
which  being  of  the  nature  of  a  hill  of  rights,  constitute  jonvafe 
law,'  are  a  protection  to  the  inhabitants  of  the  United  States 
only  against  the  powers  delegated  to  the  national  Government.' 


'  Ante,  §  409,  410. 

'Kent's  Coram.  Lect.  XIX,  in  beginning:  "As  the  Constitution  of  the  United 
States  was  ordained  and  established  by  the  people  of  the  United  States  for  their  own 
govei-nmeut  as  a  nation,  and   not   for   the   government   of  the   individual   States,  the 


RESTRICTIONS    ON    THE    STATES.  477 

Similar  provisions  might  have  been  made  in  the  Constitution  to 
restrain  the  powers  of  the  States  within  their  local  jurisdictions. 
But  the  only  existing  clauses  which  limit  their  municipal  (in- 
ternal) legislation,  (distinguished  from  international  in  respect 
to  the  persons  upon  whom  it  operates,)  affect,  principally,  either 
those  rights  of  persons  which  are  classed  as  the  rights  of  persons 
to  things — rights  of  tilings — or  those  which  have  more  of  the 
character  of  pubKc  law,  by  their  connection  with  the  political 
action  of  the  national  Government,  than  of  a  law  of  private 
relations.  Such  are  the  provisions  of  Art.  I.,  Sec  10.  The 
provisions  which  more  directly  affect  the  powers  of  the  several 
States,  in  reference  to  the  individual  and  relative  rights  of  per- 
sons within  their  limits,  are  such  as  properly  form  an  inter- 
national or  gw«Si-internationHl  law  between  the  various  States 
and  the  Government  of  the  United  States,  as  the  several  pos- 
sessors of  sovereign  powers,  to  be  exercised  locally  in  the  sepa- 
rate jurisdictions  of  the  States  or  Territories.  They  affect  the 
rights  or  obligations  of  private  persons,  within  those  several 
States  or  Territories,  when  recognized  therein  as  aliens  in  respect 
to  their  local  municipal  laws.  Thus  the  clauses  of  the  fourth 
Article  relating  to  those  who  within  any  State  are  aliens  only 
to  the  State,  but  not  to  the  United  States  and  to  the  jurisdic- 
tion of  the  national  Government,  form  a  special  law  ;  limiting 
the  powers  of  the  States  over  such  persons,  with  a  coercive  force 
beyond  that  of  the  general  principles  of  international  law,  which 
may  yet  operate,  in  like  circumstances,  as  between  those  States, 
The  powers  exclusively  granted  to  the  national  Government  over 
such  public  action  as  constitutes  the  peaceful  or  hostile  inter- 
course of  the  nation  with  other  nations,  limit  also,  to  a  certain 
extent,  the  power  of  the  States  over  those  within  their  boun- 
daries who  are  aliens  to  the  United  States. 

§  426.  If  there  are  any  legal  rights  or  liberties  and  legal 
duties  or  obligations  which  have  hitherto  been  attributed  to 
persons  within  the  United  States  by  virtue  of  principles  judi- 

powcrs  conferred  and  the  limitations  on  power  contained  in  that  instrument,  are  ap*- 
plicable  to  the  Government  of  the  United  States,  and  the  hmitations  do  not  apply  to 
the  State  Governments,  unless  expressed  in  terms.     Thus,  for  instance,"  &c. 


478  NO    COMMON   LAW    OF    UNITED    STATES. 

cially  received  as  parts  either  of  the  "  common  law,"  or  of  the 
historical  law  of  nations  or  a  universal  jurisprudence,  but  which 
are  not  fixed  by  the  provisions  of  the  Constitution  before  refer- 
red to,  having  the  effect  of  private  law,  the  principles  determin- 
ing those  rights  will  be  alterable  either  by  the  national  legis- 
lature or  by  the  several  States,  according  to  the  connection 
which  the  action,  contemplated  in  those  rights  and  privileges 
or  duties  and  obligations,  may  have  with  the  powers  respec- 
tively vested  in  the  general  Government  or  reserved  to  the 
States. 

§  427.  It  has  been  a  question  of  great  interest  and  im- 
portance in  the  jurisprudence  of  the  United  States  whether  the 
"  common  law,"  meaning  thereby  the  common  law  of  England 
transferred  to  the  American  colonies,  is  the  law  of  the  United 
States  in  their  national  or  federal  exercise  of  sovereign  power  ; 
or,  in  other  words,  whether  it  exists,  in  the  United  States,  as 
the  judicially  supposed  will '  of  that  sovereignty  which  is  repre- 
sented by  the  national  Government,  and  therefore  is  a  law, 
having  national  effect  or  prevalence,  which  is  to  be  administered 
by  the  judicial  and  executive  officers  of  that  Government. 

Eeferring  to  principles  already  stated  as  those  which  deter- 
mine the  existence  of  laws  within  the  jurisdiction  or  domain  of 
any  sovereign  power :  all  positive  law  is  law  resting  on  the  will 
of  some  possessor  of  sovereign  power  ;  and  has  force  and  appli- 
cation both  in  some  certain  territory  and  over  some  certain 
persons,  i,  e.,  is  territorial  and  personal,'  and  the  only  laws  which 
can  be  judicially  recognized  in  any  territory  and  applied  to  per- 
sons therein,  as  the  will  of  the  sovereign,  are  either  such  as  in 
judicial  recognition  can  be  known  to  have  had  territorial  extent 
therein,  to  be  shown  by  historical  evidence,  or  such  as  may  af- 
terwards originate  either  by  the  continuous  judicial  application 
of  natural  reason,  or  by  the  direct  promulgation  of  the  sovereign 
legislative  power.  Now  it  has  been  shown  that  private  law 
prevailed  in  the  colonies  as  the  law  of  each  separate  colonial 
territory,  (though  maintained  therein,  to  a  certain  extent,  by 

'  Ante,  %%  29,  30.  '  Ante,  §  26. 


COMMON    LAW    NOT    NATIONAL.  479 

the  imperial  autiiority,)  and  not  as  tlie  single  law  of  several 
parts  of  an  integral  national  domain ;  or  (if  in  any  degree  other- 
wise) that  the  only  extent  to  which  any  jirivate  law  prevailed 
nationally,  was  as  a  personaUaw,  attaching  to  the  British  subject 
of  European  race,  and  then  having  a  quasi~mteTna,tional  effect 
in  respect  to  those  districts  in  which  he  had  no  local  or  jiar- 
ticular  domicil.'  It  follows,  then,  from  the  necessarily  con- 
tinuous existence  of  private  law,  that  the  Kevolution  and  the 
consequent  assumptions  of  power  by  the  people  of  the  colonies, 
in  preserving  and  confirming  the  distributive  possession  of  sov- 
ereign powers  for  local  legislation,  maintained  that  local  charac- 
ter of  the  common  law  ;  or,  in  other  words,  that  the  only  "  com- 
mon law"  judicially  known  at  the  adoption  of  the  Constitution 
of  the  United  States  was  known  in  each  State  as  a  local  terri- 
torial law. 

§  428.  The  term  common  laio  being  here  taken  in  that 
wider  sense  in  which  it  may  be  employed  in  the  jurisprudence 
of  any  country*^  and  not  merely  as  those  rules  which  are  iden- 
tical with  the  "  common  law  of  England,"  it  may  be  said  that 
the  only  other  law  which  can  exist  in  the  United  States  must 
be  such  as  is  promulgated  by  the  direct  legislation  of  the  pos- 
sessors or  depositaries  of  sovereign  power,  and  that  the  only 
legislation  having  national  extent  is  that  contained  in  the  Con- 
stitution, or  proceeding  from  the  exercise  of  those  powers,  having 
a  national  extent,  wliich  are  vested  by  it  in  Congress.  So  far 
as  the  Constitution  employs  words  whose  meaning  is  ascertained 
by  their  previous  use  as  terms  of  the  "  common  law,"  so  far  it 
may  be  said  to  adopt  the  "  common  law"  in  the  legislation  ex- 
pressed by  those  terms  ;  and  it  will  always  be  necessary  to  refer 
to  "  common  law"  expositions  of  those  terms  to  give  effect 
to  the  Constitution.  But  there  is  nothing  in  the  Constitution 
making  the  body  of  principles  known,  either  in  any  State  or 
States  of  the  Union  or  in  England,  as  '*  common  law"  a  law 
promulgated  by  the  authors  of  that  Constitution.  Law  in  any 
state  is  a  rule  of  action  founded  on  a  right  or  power  over  such 

Ante,  §  35.  «  Ante,  §  324-326,  and  the  references. 


480  COMMON    LAW    OF    THE    STATES. 

action  ;  and  common  law  in  any  State  of  the  Union  is  therein 
the  supposed  will  of  the  State  sovereignty  in  reference  to  an 
immense  variety  of  action.  Its  identification  with  the  State  or 
local  sovereignty  is  inferred  from  the  inct,  that  by  the  Consti- 
tution of  the  United  States  the  State  has  power  to  control 
action  in  those  possible  natural  relations  which  are  now  or  have 
been  determined  by  rules  judicially  known  as  "  common  law 
rules."  But  the  powers  of  the  national  Government  over  the 
action  of  persons,  within  the  limits  of  the  States  at  least,  are 
derived  by  specific  grants,  and  to  suppose  that  the  common 
law  is  a  rule  of  action  enforceable  by  that  Government  would 
be  to  attribute  a  rule  of  action  to  its  authority,  without  reference 
to  the  nature  of  its  powers  to  make  a  rule.  Congress,  in  the 
exercise  of  its  legislative  powers,  might  adopt  a  rule  previously 
expressed  in  "  common  law  ;"  but  the  extent  and  force  of  that 
adoption  would  be  limited  by  the  grant  of  power  in  the  Constitu- 
tion. "  Common  law,"  therefore,  is  not  the  territorial  law  of  the 
United  States  as  one  domain,  even  if  any  system  of  rules  is 
recognized  as  common  law,  distinct  from  the  juridical  will  of 
some  one  State  of  the  Union  in  which  the  English  law  of  the 
individual  and  relative  rights  of  private  persons  has,  in  a  modi- 
fied form,  acquired  a  territorial  extent. 

§  429.  But  laws  apply  as  personal  laws  as  well  as  territorial 
laws  ;  or,  have  a  personal  extent  which  may  be  distinguished  from 
their  territorial  extent ;  and  where  the  national  Government 
has  power  to  administer  law  between  persons  (from  a  grant  of 
power  over  them  as  specified  persons)  without  reference  to 
the  administration  of  any  particular  system  of  laws,  if  those 
persons  have  sustained  relations  under  the  law,  having  territo- 
rial extent  in  some  State,  which  is  in  such  State  known  as 
"  common  law,"  there  the  national  Government  may  be  said  to 
have  a  common  law  jurisdiction,  in  applying  it  to  persons  over 
whom  it  has  this  personal  jurisdiction. 

Thus  the  judicial  power  of  the  United  States,  applying  to 
ca^es,  is  described  by  cases  render  certain  laios,  and  cases  be- 
tween certain  persons.  Although  the  laws  under  which  the  first 
class  of  cases  may  arise  are  only  the  law  contained  in  the  Con- 


NO  COMMON  LAW  OF  THE  UNITED  STATES.       481 

stitution,  treaties,  and  the  legislation  of  Congress,  the  cases  be- 
tween persons  may  be  cases  at  common  law  ;  in  which  instances 
the  common  law  enforced  by  the  national  judiciary  will  be  the 
law  of  the  local  domain  under  which  the  person,  upon  whom  the 
national  jurisdiction  has  attached,  may  have  sustained  relations 
and  have  acquired  rights  or  incurred  obligations. ' 

§  430.  If  the  common  law  in  any  jurisdiction  is  that  law 
which  is  judicially  recognized  as  the  rule  of  natural  reason,'*  it 
might  appear  strange  that  such  a  law  should  not  be  a  part  of 
the  national  municipal  law.  But  it  is  to  be  remembered  that 
the  legal  coercive  effect  of  the  common  law  of  England  or  uf  any 
State  of  the  Union  does  not  depend  upon  its  actual  accordance 
with  natural  reason,  but  upon  its  acceptation  as  such  by  the 
possessor  of  sovereign  power.  Now  the  United  States  have  es- 
tablished a  national  rule  only  in  regard  to  certain  specified 
matters  or  relations.  It  is,  therefore,  as  to  such  only  that  tlie 
national  judiciary  can  enforce  a  rule  of  action,  however  derived, 
either  from  a  legislative  act,  or  from  a  judicial  interpretation 
of  natural  reason.  As  to  such  only  can  the  judiciary  apply 
natural  reason  according  to  standards  identified  with  the  will  of 
the  United  States  as  one  nation.  But,  in  considering  the  juris- 
diction of  the  national  judiciary  over  persons  and  the  laws 
which  it  may  apply,  a  distinction  is  to  be  made  between  their 
having  authority  to  ascertain  the  rule  of  natural  reason  apply- 
ing to  certain  relations  or  conditions  of  action,  and  their  having 
authority  to  enforce  a  rule  over  certain  persons  which  is  derived 
from  natural  reason  by,  or  according  to  the  judgment  of,  another 
possessor  of  sovereign  power,  not  identified  with  the  United 
States  in  their  national  capacity.  Before  any  rule  derived  by  a 
judicial  reference  to  natural  reason  can  be  enforced  by  the  na- 
tional Government  it  must  be  identified  either  with  the  will  of 
the  United  States,  or  with  that  of  some  single  State  ;  and  the 
criterion  of  those  matters  or  relations  as  to  which  the  United 
States  can  be  taken  to  have  given  a  rule  of  action  is  in  the 
Constitution  only.^ 

'  Ante,  g  368.     Duponceau  on  Jurisdiction,  p.  47.  '  Ante,  §  35. 

'  The  question,  here  made,  is  of  the  hiw  by  which  civil  rights  and  obligations  may 
be  created  or  become  existent ;  and  whenever  in  the  national  jurisprudence  they  are 

31 


482  NATIONAL    COMMON    LAW. 

§  431.  Common  law  then  (including  herein  the  law  of  na- 
tions, jus  gentium  or  universal  jurisprudence,  so  far  as  it  is  a  law 
of  personal  condition')  is  in  each  State  alterable  only  Ly  the 
State  power  ;  except  so  far  as  limited  by  the  constitutional 
provisions  before  referred  to. 

If,  as  has  sometimes  been  asserted,  Christianity,  or  the  code 
of  morals  known  as  the  Christian,  ever  had  legal  eilect  either  as 
part  of  the  "  common  law  of  England  "  and  America  or  of  the 
law  of  natAons  among  nations  called  Christian,'^  its  continuance, 
with  legal  authority  in  determining  the  relations  and  rights  of 
persons,  is  not  maintained  by  any  constitutional  provisions 
Tivino-  it  the  effect  of  a  national  law  for  the  United  States. 
And,  whatever  may  be  the  degree  of  correspondence  between 
that  code  and  the  existing  laws  of  the  United  States,  its  recog- 
nition as  a  judicial  rule  within  any  State  of  the  Union  depends 
solely  on  the  separate  sovereignty  of  the  State. 

§  432.  How  far  the  "  common  law  "  may  be  a  national  law, 
in  the  sense  of  a  law  resting  on  the  power  represented  by  the 
national  Government  in  the  Territories,  District  of  Columbia, 
&c.,  is  a  question  of  that  one  of  the  local  municipal  laws,  as 
before  defined,  which  may  therein  prevail.  Because  those  Ter- 
ritories, &c.,  are,  in  reference  to  the  rest  of  the  Union  and  in 
point  of  severalty  of  jurisdiction,  like  the  several  States.^ 

recojniized  as  effects  of  common  law,  that  law  is  al?o  known  as  local  inimioipal  law. 
This'^is  the  general  rale,  at  least  as  to  those  riglits  and  obligations  which  constitute 
the  piTSonal  condition  or  status  of  private  persons.  But  when  the  judicial  power  of 
the  r.  S.  is  exercised,  under  the  Constitution,  to  actualize  or  realize  (ante.  p.  59,  n.) 
those  effects,  the  national  courts  must  (in  the  absence  of  statute)  adopt  a  rule  of  nut- 
ur;il  reason  determined  by  general  principles  of  jurispradence.  _  {Ante,  §^  29-36.) 
This  must  be  a  customary  or  common  law  identified  with  the  juridical  will  of  the 
Hiitiwu,  the  authors  of  the  Constitution,  and  not  with  that  of  any  one  of  the  local  sov- 
ereignties. So,  when  "  cases  at  law  and  equity"  arising  under  this  Constitution,  &c  , 
are  to  be  decided  in  the  national  tribunals,  the  cases  are  to  be  distinguished  according 
to  the  jurispradence  of  England  as  familiarly  known  here,  ( Story's  Comra.  §  1G45,  i  and 
tlif  rules  of  remedy  are  not  the  practice  of  some  State,  "  but  according  to  the  prin- 
ciples of  common  law  and  equity  as  distmguished  and  defined  in  that  country  from 
wiii'.-ii  we  derived  our  knowledge  of  those  principles."  (Kobinson  v.  Campbell,  3 
Wheaton,  212,  221,  223  :  1  Kent,  342.)  So  that  there  is  a  sense  in  which  a  national 
common  law  may  be  said  to  exist  and  be  adopted  by  the  Constitution  to  the  extent  of 
making  it  "  a  rale  in  the  pursuit  of  remedial  justice  in  the  courts  of  the  Union." 
(Story's  Comm.  §  1645  and  §  158,  note.)  Whether  the  courts  of  the  U.  S.  have  juris- 
diction to  punish  acts  which,  though  not  made  punishable  by  the  legislation  of  Con- 
gress, are  criminal  by  such  a  national  common  law,  is  a  different  question.  Comp.  1 
Kent's  Comm.  Lect.  xvi;  Rawle  on  the  Const,  ch.  28;  Duponeeau's  Treatise;  1 
Tucker's  Bl  App.  E.  •   ,     rv   on 

'  Ante,  g  110.  "  AiiU,  §  174.  ^  Ante,  §  397.   Duponc.  ou  Jurisd.  29,  30. 


STATUS  FIXED  BY  THE  STATES.  483 

§  433.  There  is  therefore  nothing  in  the  Constitution  of  the 
United  States  which  (either  by  abnegation  of  the  power  to 
establish  a  chattel  condition  as  a  personal  distinction,  or  by  at- 
tributing the  legal  rights  of  persons  to  all  mankind,  or  by  an 
adoption  of  the  English  "  common  law"  in  respect  to  individual 
and  relative  rights  as  a  national  and  territorial  law)  determines 
the  civil  condition  or  staHis  of  natural  persons  under  a  law  hav- 
ing national  extent,  to  be  recognized  throughout  the  dominion 
of  the  United  States  and  to  be  enforced  by  the  national  Grov- 
ernment. 

Further,  the  powers  specifically  granted  to  Congress,  for 
enacting  laws  to  have  national  extent,  are  not  of  such  a  nature 
as  to  determine  those  rights  of  persons  the  possession  or  non- 
possession  of  which  is  the  most  important  element  of  a  free  con- 
dition or  of  its  contraries  ;  that  is,  individual  rights,  ^  even  in- 
dependently of  those  restrictions  on  the  national  Government 
which  have  the  character  of  a  bill  of  rights  ;  and  even  the  per- 
sonal application  of  the  reservations  against  the  powers  of  the 
national  Government,  in  favor  of  specified  rights  of  private  per- 
sons, is  not  determined  by  the  Constitution  itself 

§  434.  On  the  other  hand  the  restrictions  in  the  Constitu- 
tion of  the  United  States,  on  the  powers  held  by  the  States 
severally,  are  not  of  such  a  nature  as  to  limit  their  power  in 
the  creation  of  local  law  affecting  private  rights,  except  in  a 
few  relations,  not  embracing  those  rights  which  distinguish  a 
legal  status  or  condition  of  persons,  and  in  certain  sjiecified  in- 
ternational and  gwasi-international  relations.  The  power 
therefore  of  determining  by  personal  laws  the  condition  of  in- 
dividuals and  their  enjoyment  of  civil  liberties  belongs  to  the 
States,  as  the  proper  object  of  their  own  municipal  (internal) 
law,  under  that  share  of  sovereign  power  which  remains  in  them 
severally,  subject  only  to  the  undetermined  effect  of  the  na- 
tional guarantee  for  a  republican  government,  and  restrained, 
in  its  application  to  persons,  by  general  international  obligation, 
(law  in  an  imperfect  sense,)  and  the  laio  (in  the  strict  and 
proper  sense)  of  the  Constitution  having  similar  effect  with 
coercive  authority  over  private  individuals. 

'  Ante,  §  139. 


484  STATUS  FIXED  BY  THE  STATES. 

§  435.  The  power  over  civil  liberty  and  the  legal  possession 
of  the  rights  of  private  persons  being,  to  this  degree,  within  the 
powers  of  the  States  severally,  they,  by  their  own  local  law, 
determine  within  their  own  territory  even  the  personal  applica- 
tion of  the  constitutional  reservations  in  favor  of  ''  the  people" 
against  the  powers  of  the  national  Government  ;  that  is,  it 
would  seem  that  in  each  State  it  remains  for  the  State  to  de- 
termine who  constitute  the  individuals  of  that  "  people  "  who, 
by  legal  capacity  for  the  rights  referred  to  in  those  provisions, 
are  not  to  be  prohibited  by  the  national  Government  "from 
assembling  peaceably  for  the  redress  of  grievances,"  whose 
"  right  to  keep  and  bear  arms  shall  not  be  infringed,"  who  are 
to  be  "  secure  in  their  persons,  houses,  and  possessions  against 
unreasonable  search  or  seizure."'  For  since  the  legal  unrea- 
sonableness of  a  search  or  seizure  depends  upon  the  legal  nature 
of  the  rights  of  personal  liberty,  personal  security,  and  private 
property,  (where  distinctions  can  be  made  between  natural  per- 
sons according  to  the  degree  in  which  they  possess  those  rights,) 
if  the  States  determine  the  legal  capacity  of  persons,  that  deter- 
mination will  operate  in  reference  to  the  judicial  and  executive 
powers  of  the  national  Government,  when  they  act  upon  the 
same  persons.  And  even  supposing  that  no  law  of  Congress 
had  been  made,  or  could  be  made,  to  affect  relations  founded  on 
such  personal  distinctions,  yet  it  may  be  sujiposed  that  the  con- 
stitutional obligation  of  the  United  States,  to  maintain  by  force 
the  domestic  tranquillity  of  each  State,  might  give  occasion  for 
the  recognition  of  those  distinctions  by  the  national  executive 
and  judiciary.'* 

§  436.  During  the  connection  of  the  American  colonies  with 
the  British  empire,  as  before  shown,  the  common  law  rights  of 
Englishmen  were  estabhshed,  by  that  law,  for  the  white  inhab- 
itants, at  least,  of  each  colony,  by  the  imperial  as  well  as  the 
local  sovereignty  ;  and  the  same  law,  as  personal  to  those  colo- 

*  Art.  I.,  n.,  rV.,  of  Amendments. 

'  Art.  IV.  sec.  4.  "  The  United  States  shall  guarantee  to  every  State  in  this  Union 
a  republican  form  of  governmeut,  and  shall  protect  each  of  them  against  invasion ; 
and  on  application  of  the  legislature  or  of  the  executive,  (when  the  legislature  cannot 
be  convened,)  against  domestic  violence." 


STATUS  FIXED  BY  THE  STATES.  485 

nists,  had  a  territorial  extent  and  recognition  throughout  the 
colonies  as  one  national  dominion,  irrespectively  of  the  local 
legislature,  and  that  personal  law  or  those  personal  rights  were 
guaranteed  by  the  united  power  of  the  empire.  But  there  being 
nothing  in  the  Constitution,  except  as  above  stated,  to  limit  the 
powers  of  the  States  in  affecting  or  altering  "  common  law 
rights"  by  their  municipal  (internal)  laws,  it  seems  that  the 
rights  or  liberties  of  private  persons  have  no  longer  the  same 
basis  in  the  undivided  sovereignty  of  a  nation,  as  formerly  ;  and, 
therefore,  not  the  same  security  for  their  permanence  in  a  State 
of  the  Union  as  formerly  in  the  colony ;  the  power  to  affect  those 
liberties  having  passed  into  the  States  as  divided  into  distinct 
political  bodies  of  local  jurisdiction,  irrespectively  of  the  sove- 
reignty existing  in  the  States  united,  except  where  controlled  by 
the  provisions  of  a  gwasi-international  character. 

Whether  civil  or  social  liberty  has,  in  consequence  of  this 
political  change,  a  better  or  a  worse  foundation  in  the  present 
United  States  than  in  the  former  colonies  of  Great  Britain,  is  an 
inquiry  which  is  not  embraced  in  that  legal  view  of  the  subject 
which  is  herein  taken. 


CHAPTER  XV. 

OF    THE    NATIONAL   MUNICIPAL    LAW    OF    THE    UNITED    STATES 

THE    SUBJECT    CONTINUED — OF    THE   PERSONS    WHO    MAY   AP- 
PLY   THAT   LAW    BY    THE   EXERCISE    OF   JUDICIAL    POWER. 

§  437.  Under  every  form  of  govemment  the  inYestiture  of 
the  power  tp  apply  the  law  is  a  circumstance  to  be  considered 
in  determining  those  conditions  of  private  persons  which  may 
he  established  under  law.  It  may  here  be  assumed  that,  in  a 
republican  government,  this  power  should  always  be  distin- 
guished, in  its  exercise,  from  the  power  to  promulgate  laws— - 
the  legislative  or  juridical  power.  The  coercive  application  of 
the  laws  of  a  country  is  by  the  instrumentality  of  ministerial 
or  administrative  functionaries  co-operating  with  the  judicial. 
It  may  be  difficult  to  distinguish,  in  every  instance,  between 
the  persons  so  co-operating,  as  being  either  administrative  or 
judicial  officers.  But  in  a  government  wherein  the  three 
functions  of  sovereign  power  are  separately  invested,  the  judi- 
cial function  becomes  the  test  of  the  administrative  or  minis- 
terial. ' 

§  438.  Whatever  may  be  the  intended  operation  of  the  na- 
tional municipal  law  of  the  United  States  in  causing  rights  or 
obligations,  incident  to  conditions  of  freedom  or  its  contraries,  in 

*  But  legislative  assemblies  are  considered  as  holding  the  judicial  function  to  a 
certain  extent,  (1  Peters'  R.  GG8,)  with  the  powers  incident  to  courts  of  law ;  in  the 
exercise  of  which  their  judgment  is  final,  whether  the  occasion  for  it  arose  in  the  course 
of  the  legislative  or  of  some  other  function.  Cushing's  Law  of  Legislative  Assemblies, 
Part  in.  ch.  iii,  iv.  In  2  Kent's  Comni.  30,  note,  the  author  seems  to  think  that  the 
American  legislative  bodies  are  (in  the  absence  of  any  constitutional  provisions)  as 
uncontrollable  in  this  respect  as  the  English  houses  of  parliament. 


OF    THE    JUDICIAL    POWER.  487 

private  persons,  tlie  investiture  of  the  judicial  function,  by  which 
its  application  as  a  coercive  rule  is  to  be  determined,  is  an  im- 
portant incident  of  those  conditions. 

In  the  previous  chapter  it  was  necessary  to  consider  the  re- 
lative extent  of  the  judicial  functions  derived  from  the  United 
States  and  from  the  several  States,  in  applying  the  Constitu- 
tion operating  as  the  supreme  public  law  and  the  evidence  of 
the  location  of  sovereign  juridical  power.  The  question,  of 
jurisdiction  under  the  national  municipal  law,  which  is  here 
presented,  is  also  a  question  of  the  public  law  ;  although  here 
regarded,  mainly,  as  one  of  private  law  ;  that  is,  one  in  reference 
to  the  relations  of  private  persons. 

§  439.  This  question,  respecting  the  exercise  of  the  judicial 
function  in  carrying  into  effect  the  national  municipal  law, 
arises  fr©m  the  feet  that,  within  the  limits  of  each  State  of  the 
Union,  the  sum  of  sovereign  power  over  the  territory  of  such 
State  and  all  persons  and  things  therein  is  divided  between  the 
particular  State  and  the  national  Government  of  the  United 
States  in  their  national  capacity ;  and  that,  since  the  powers 
held  by  each  are  sovereign  in  their  nature,  the  governmental 
organization  of  each  must  include  tribunals  for  the  execution  of 
the  law  derived  from  the  j^owers  so  held  by  it. 

Now,  though  the  tribunals  thus  constituted  by  these  co- 
ordinate possessors  of  sovereignty  have  jurisdiction  over  the 
same  territory  and  the  same  persons,  the  tribunals  deriving 
their  authority  from  one  of  them  will  not,  necessarily,  have  the 
power  to  apply  the  law  proceeding  from  the  juridical  powers 
held  by  the  other. 

§  440.  Since  the  three  functions  of  pohtical  power  must 
be  united  in  the  hands  of  its  ultimate  possessor,  (if  it  is  sov- 
ereign political  power,)'  it  is  evident  that,  in  order  that  the 
powers  of  each  of  these  two  political  entities  or  personalities 
may  be  actually  sovereign  and  independent,  the  judicial  func- 
tion, for  the  administration  of  the  law  proceeding  from  either, 
must  be  exercised  by  its  own  instruments.  By  the  concurrence 
indeed  of  the  two  political  sources  of  law,  the  tribunals  ap- 

•  Ante,  p.  42-t. 


488  CONCURRENT    JUDICIAL    POWER. 

pointed  by  either  one  might  administer  the  law  derived  from 
the  legislative  or  juridical  power  of  the  other  ;  in  which  case 
the  judicial  function  of  each  would  merely  he  cxcrcis-ed  hy  the 
same  persons  ;  while  still  having  an  essentially  independent 
political  existence,  or  being  still  derived  from  different  political 
sources. 

§  441 .  If  tlds  question  of  the  exercise  of  judicial  power  in 
applying  the  national  municipal  law  be  thus  made  with  reference 
to  the  jurisdiction  of  the  State  courts,  it  becomes  equally  a 
question  of  the  local  municipal  law  of  those  States,  the  subject 
of  the  next  chapter  ;  as  it  is  here  a  question  of  the  national 
law. 

§  442,  The  law,  whose  judicial  application  is  to  be  here  con- 
sidered, includes  that  which  has  an  international  effect  between 
the  States,  (being  herein  distinguished  from  other  portions  of 
the  national  law  by  the  character  of  the  persons  to  whom  it  ap- 
plies,) and  which  is  to  be  separately  considered,  in  succeeding 
chapters,  under  the  name  of  the  domestic  international  law  of 
the  United  States  ;  or,  at  least,  it  includes  that  portion  of  that 
international  law  which  has  a  ^^Mfts^'-iuternational  effect  between 
the  States,  in  being  derived  from  the  Constitution  and  identi- 
fied with  the  national  municipal  law  in  its  authority.^ 

§  443.  In  the  sixth  Article  of  the  Constitution  of  the  United 
States  it  is  declared,  that  "  this  Constitution  and  the  laws  of  Con- 
gress made  in  accordance  with  it  shall  be  the  supreme  law  of  the 
land,  and  all  State  courts  shall  be  bound  by  it,  any  thing  in  the 
laws  of  the  States  to  the  contrary  notwithstanding."  And  since 
the  several  States,  or  the  people  of  the  States,  who  within  their 
several  State  limits  possess  in  severalty  certain  sovereign  powers, 
united  in  establishing  the  Constitution  of  the  United  States  and 
in  authorizing  Congress  to  legislate,  for  certain  purposes,  with 
national  extent,  it  might  be  argued,  from  this  fact  alone,  that 
the  national  municipal  law  is  the  legislative  will  of  each  several 
possessor  of  State  power. '^  It  would  seem,  therefore,  that  the 
judicial  tribunals  under  that  State  power  would  have  jurisdic- 

*  Ante,  §  402,  1.  "  1  Calhoun's  Works,  p.  252. 


INDEPENDENT   JURIDICAL    ACTION.  489 

tion  to  apply  tlie  national  law,  as  well  as  the  law  wliich  rests 
solely  on  the  separate  (reserved)  powers  of  that  State,  whenever 
the  persons  and  things  affected  by  such  national  law  should 
be  found  within  the  territorial  forum  of  their  jurisdiction. 

§  444.  But  in  establishing  the  Constitution  of  the  United 
States  and  in  so  exercising  power  jointly,  or  as  one  nation,  the 
people  of  the  United  States  have  created  a  Government  and  in- 
vested the  powers  held  by  them  jointly,  or  in  their  national  ca- 
pacity, in  that  Government ;  to  be  exercised  by  the  three 
functions  of  sovereignty,  as  powers  originally  sovereign  in  its 
hands/  Now,  in  order  that  the  judicial  function  of  the  national 
Governnaent  in  reference  to  the  national  law  may  be  independent 
of  any  application  of  that  function  derived  from  the  State  powers, 
it  is  e\^dent  that  the  national  Government  must  have  an  entire 
possession, or  exercise  of  such  judicial  power  as  is  requisite  for 
the  application  of  the  national  law,  and,  hence,  the  power,  at  its 
option,  of  exercising  it  by  instruments  of  its  own  appointment. 

The  several  States  and  the  Government  of  the  United  States 
are  altogether  distinct  in  the  possession  of  their  legislative  or 
juridical  powers  over  the  action  of  private  persons,  and  the  law 
(private  law)  proceeding  from  the  one  must  be  judicially  ad- 
ministered independently  of  the  judicial  function  held  by  the 
other.  Or,  if  the  laws  resting  on  the  powers  of  the  United 
States  and  the  laws  resting  on  the  powers  of  the  several  States 
may,  within  the  territorial  jurisdiction  of  a  State,  be  together 
administered  by  the  tribunals  of  either  one,  such  exercise  of  the 
judicial  power  must  be  supposed  to  be  consistent  with  the  ad- 
mitted distribution  of  sovereign  power  between  the  two  sources 
of  law  which  is  evidenced  by  the  Constitution  of  the  United 
States. 

§  445.  An  exception  to  this  may  be  supposed  to  exist  under 
the  clause  in  the  second  section  of  the  third  Article,  which  de- 
scribes the  judicial  power,  vested  in  the  Supreme  Court  and 
such  inferior  courts  as  Congress  may  establish,  as  extending  to 
cases  between  certain  persons  ;  since  such  cases  may  involve 
the  determination  of  rights  and  obligations  as  legal  effects  origi- 

*  Ante,  §.  360. 


490  CONCURRENT    JUDICIAL    ACTION. 

nating  under,  or  created  by  or  made  to  exist  by  the  juridical 
exercise  of  State  powers. ' 

Bat  there  is  not  here  any  actual  exception,  since,  by  this 
determination  of  the  extent  of  the  national  judicial  power,  the  . 
rule  which  governs  these  cases  only  becomes  identified  in  an- 
thority  with  the  national  law,  though  it  may  have  originated  in 
the  juridical  will  of  one  of  the  States  ;  and,  when  applied  in 
such  a  case,  it  takes  effect  as,  or  may  be  classified  under,  the 
^'Masi-international  law  (a  part  of  the  national  law)  by  the 
character  of  the  persons  upon  whom  it  acts,  or  whose  rights  and 
obligations  it  determines.  The  rule  of  action  determining  the 
rights  and  obligations  of  private  persons  in  these  cases  is  still 
supposed  to  be  taken  by  the  national  judiciary  as  one  resting  on 
the  several  legislative  (juridical)  will  of  a  State.* 

»  Ante,  §§  368,  429. 

^  Judiciary  act  of  1789,  sec.  34,  1  Stat,  at  Large,  81,  Brightly 's  Digest,  792, 
and  cases  cited ;  1  Kent's  Comm.  342,  not>..  The  rule  applies  with  particular  force 
where  "rights  of  person  and  property,"  or  individiud  rights,  are  to  be  determined.  U. 
S.  V.  Wonsoii,  1  Gallison,  18  ;  Mayer  v.  Foulkrod,  4  Wash.  C.  C.  R.  349,  3.")") ;  Camp- 
bell V.  Claudius,  Peters'  C.  C.  R.  484.  The  authorities  concur  that  the  national  ju- 
diciary will  regard  the  State  courts  as  the  best  expositors  of  the  State's  law  or  juridical 
will.  See  those  above,  and  Elmcndorf  v.  Taylor,  10  Wheaton,  15!);  Mr.  Clay,  in 
Groves  v.  Slaughter,  15  Peters,  48.^;  Strader  v.  Graham,  10  Howiirl,  82,  93;  Dred 
Scott's  case,  19  Howard,  452,  459,  4G5,  547,  557,  603.  But,  unless  the  decision  of 
the  court  in  the  last-named  case  be  an  exception,  it  has  not  been  held  either  that  the 
national  judiciary  must  regard  a  decision  of  a  State  court  in  reference  to  the  same 
facts  and  per.sons  as  a  controlling  exposition  of  the  State  law  to  be  applied,  or  that  it 
will  accept  the  latest  decision  of  the  State  court  (compared  with  earlier  State  authori- 
ties) as  the  ruling  criterion  of  that  law. 

In  that  case,  the  Justices  who  concurred  in  the  decision  of  the  court  seem  to  have 
held,  (with  Ch.  Justice  Taney,  p. 453,  and  Mr.  Justice  Nel«on,  p.  465,)  that  the  court  below 
(the  U.  S.  C.  C. )  and  the  State  court  (in  15  Misouri  R.  576,)  had  coiTectly  interpreted 
the  law  (juridical  will)  of  the  State  in  such  cases.  The  dissenting  justices  (McLean, 
p.  547-557,  and  Curtis,  p.  594-604,)  held  that  the  State  law  had  not  been  properly 
understood. 

This  point  of  the  ca.se  will  be  further  examined  hereinafter,  as  a  question  under 
one  branch  of  the  domestic  international  law,  (_ante,  §  402 ;  2.)  But  it  may  be  noticed 
here  that,  in  the  State  court,  the  two  concurring  Justices  seem  to  have  admitted  (with 
the  other  judge.  Gamble,  C.  J.)  that  both  the  private  internatioual  law  which,  as  prevail- 
ing among  nation.«,  customarily  obtains  judicial  recognition  in  every  forum,  {anfe,  §  258,) 
and  the  earlier  Missouri  cases  supported  a  different  judgment ;  that  they  expressly  based 
their  decision  on  that  idea,  of  deciding  what  comiti/  does  or  does  not  require  from  the 
Sfaie,  the  inadmissibility  of  which  was  urged  in  the  second  chapter,  (^;j  81-85.)  and,  de- 
claring "that  times  are  not  as  they  were  when  the  former  decisions  on  the  subject  were 
made,"  they  derive  positive  private  law  from  their  personal  views  of  the  comity  obli- 
gations of  the  State,  in  reference  to  the  external  action,  legislative  and  political,  of 
other  States  and  their  inhabitants;  (15  Missouri  R.  682;  19  Howard,  552.)  It  was 
in  reference  to  these  "fundamental  principles  of  private  international  law,"  and  "  prin- 
ciples of  universal  jurisprudence, "'that  Mr.  Justice  Cmtis  especially  urged,  (pp.  594, 


CONCURRENT    JURIDICAL    POWER.  491 

§  446.  The  application  of  the  national  law  must,  on  the 
above  argument,  be  ultimately  determinable  by  the  national 
judiciary  ;  yet  it  has  been  shown  that  of  necessity  every  judicial 
officer  in  the  United  States  applies  the  Constitution,  operating 
as  public  law,  in  recognizing  the  validity  of  any  rule  which  he 
may  apply  as  private  law  ;  and  State  courts  are,  therefore, 
bound  to  apply  the  national  municipal  law,  at  least,  so  far  as  it 
is  public  law  ;  but  of  this  application  the  national  judiciary 
must  be  regarded  as  the  supreme  or  final  arbiter,  at  least,  in 
reference  to  the  action  of  private  persons,  and  with  those  limit- 
ations which  arise  from  the  manner  in  which  sovereign  power  is 
distributed  among  the  United  and  several  States.' 

§  447.  But  though  certain  action  or  the  relations  of  private 
persons  in  certain  circumstances  of  natural  and  civil  condition, 
and  therefore  certain  classes  of  rights  and  obligations,  are  de- 
termined by  the  Constitution,  or  are  determinable  by  the  legis- 
lation of  Congress,  and  thus  are  dej^endent  on  the  national  mu- 
nicijjal  law  and  subject  to  the  judicial  power  of  the  United 
States,  yet,  if  the  legislative  (juridical)  will  of  a  several  State 
may  sustain  a  rule  in  reference  to  the  same  action  or  relations 
of  private  persons,  such  a  rule  would  necessarily  be  applicable 
by  tribunals  holding  the  judicial  power  of  the  State.  And  it 
would  appear  that  such  a  judicial  enforcement  of  the  juridical 
will  of  the  State  will  not  derogate  from  any  of  the  function's  of 
the  national  Government  in  exercising  the  national  powers,  the 
powers  belonging  to  the  United  States  ;  if  it  is  admitted  that 

602,  60.3,)  that  the  doctrine  of  the  State  court  should  not  be  taken  as  the  law  of  the 
State  nor  be  applied  as  part  of  the  private  international  law  of  the  United  States. 

Where  a  queftion  arises  under  that  jwa*/- international  law  which  is  in  mithorky 
identified  with  the  national  will,  (ante,  §  402,  1,)  it  is  evident  that  the  national  judiciary 
is  not  to  follow  an  international  rule  identified  with  the  will  of  some  one  of  tlie  States 
only.  For  this  reason,  apparently,  it  has  been  held  that  the  local  law  of  a  State  is 
not  to  be  adopted  in  the  construction  of  contracts  and  questions  of  connnorcial  law. 
Swift  V.  Tyson,  IG  Peters,  1,19;  Carpenter  v.  Providence  Ins.  Co.,  lb.  490,  51 1 ;  Rowan 
V.  Runnels,  5  Howard,  134;  Watson  v.  Tarpley,  18  How.  520;  Gloucester  Ins.  Co. 
V.  Younger,  2  Curtis  C.'C.  322.  In  Dred  Scott's  case,  19  How.  603,  Mr.  Justice 
Curtis  held,  that  there  were  questions  of  status  involved  which,  arising  exclusively 
"  under  the  Constitution  and  laws  of  the  United  States,  this  court,  under  the  Consti- 
tution and  laws  of  the  United  States,  has  the  rightful  authority  finally  to  decide." 

»  Ante,  gg  365-3G7.     Martin  v.  Hunter,  1  ^\■heaton,  340-351. 


492  CtNCURRENT   JURIDICAL   POWER. 

the  rule  emanating  from  the  State  shall  never  interfere  with  the 
operation  of  that  which  emanates  from  the  national  powers. 

Unless,  therefore,  the  powers  of  the  national  Government 
have  been,  in  the  Constitution,  declared  to  be  exclusive  in  ref- 
erence to  such  action,  or  the  exercise  of  a  like  power  by  a  State 
would  be  inconsistent  Avith  the  exercise  of  the  powers  vested  in 
the  national  Government,  the  law  of  the  State,  i.  e.,  a  rule 
resting  for  its  authority  on  the  State's  several  share  of  power, 
might  be  applied  to  the  same  action  or  relations,  and,  neces- 
sarily, by  the  exercise  of  its  own  judicial  power.'  But  it 
is  to  be  observed,  that  no  rule  could  properly  be  thus  attributed 
to  the  legislative  (juridical)  will  of  the  State  unless  the  action 
or  relations  affected  by  it  exist  in  reference  to  circumstances 
which  would  have  been  within  the  actual  jiower  or  sovereignty 
of  the  State,  if  it  had  never  formed  one  of  the  United  States,  or 
had  become,  at  the  Revolution,  and  continued  to  be  a  State 
holding  the  sum  of  sovereign  power  ;  or,  (to  use  language  ap- 
propriate to  a  particular  view  of  the  national  history)  circum- 
stances in  which  the  State  possessed  jurisdiction  "  originally"  or 
• "  j)revious  to  the  Constitution."'' 

In  order  that  the  powers  held  by  the  national  Government 
in  reference  to  any  action  or  relations  may  be  supreme  in  their 
nature,  it  must  have  the  power  of  making  the  national  judiciary 
the  supreme,  at  least,  if  not  the  exclusive  judicial  criterion  of 
the  legal  nature  of  such  action  or  relations.  But  if  Congress 
has  not  thus  made  the  national  judicial  power  the  exclusive  cri- 
terion,' the  State  courts  will,  in  the  case  supposed,  have  a  con- 

•  Houston  V.  Moore,  5  Wheaton,  26,  34;  Fox  v.  State  of  Ohio,  5  Howard,  410, 
McLean,  J.,  dissenting,  as  in  Moore  v.  State  of  Illinois,  14  How.  21,  involving  consti- 
tutionality of  State  law  punishing  the  secreting  of  fugitive  slaves,  (in  State  court,  Eells 
I'.  The  People,  4  Scamraon's  R.  498,)  where  the  decision  of  the  Supr.  Court  in  Prigg's 
case,  16  Peters',  .'SSD,  against  the  validity  of  Stats  legislation  regarding  f\igitive  slaves 
was  urged  as  authority.  1  Kent's  Conim.  389--39G;  Curtis'  Comin.  §§  119-122,  132- 
142 ;  Teal  v.  Felton,  1*2  Howard,  234,  2:)2. 

^  Federalist,  No.  82;  Story's  Comm.  §§  1751-1754;  Martin  v.  Hunter,  1  Wheaton, 
337. 

"  The  same  authorities.  In  theory,  the  rule  may  be  that  Congress  can  always 
make  the  national  jurisdiction  exclusive  in  cases  where  there  would  otherwise  he  a 
concurrent  jurisdiction.  But  since  the  limits  of  concurrent  jurisdiction  are  hardly  de- 
terminable, except  as  cases  arise  in  practice,  the  limits  of  a  posdhly  exclusive  national 
jurisdiction  will  always  be  undetermined.     Compare  Rawle,  p.  205,  note. 


CONCURRENT    JURIDICAL    POWER.  493 

current  jurisdiction  with  the  national  judiciary,  though  applying 
a  rule  resting  on  its  own  sovereignty  and  identified  with  its  own 
local  law.  And  it  might  he  said  that  they  will  exercise  concur- 
rent Judicial  '^o^\cr.  But,  strictly  speaking,  it  is  here  the  legis- 
lative (juridical)  will  of  the  State  (exercised  by  its  three 
functions)  which  is  manifested  concurrently  with  the  natioQal  le- 
gislative (juridical)  power,  (also  exercised  by  its  three  functions.) 
§  448.  Thus,  in  reference  to  ordinary  civil  relations,  the 
State  courts  may  have  concurrent  jurisdiction  to  enforce  certain 
obligations  or  maintain  certain  rights.  And,  even  in  reference 
to  action  which  is  the  subject  of  judicial  cognizance  as  being 
criminal  against  a  certain  poUtical  sovereign,  it  has  been  held 
that  the  State  court  may  have  concurrent  jurisdiction  to  punish 
the  act  when  made  criminal  by  State  law,  even  though  a  de- 
finitive punitory  law  may  have  been  enacted  by  Congress.^  For, 
though  it  is  truly  said  that  criminal  jurisdiction  can  be  exer- 
cised only  by  a  court  instituted  by  the  civil  power  which  has 
declared  the  act  to  be  a  crime,  and  one  whose  executive  may 
pardon  the  oflfence,'^  the  act  may  be  against  the  declared  will  of 
each  possessor  of  power.  In  these  instances,  ho.wever,  the  com- 
patibility of  the  State  law  with  the  exercise  of  power  vested  in 
the  national  Government  must  be  determinable  by  the  judicial 
power  of  the  United  States  invested  in  their  properly  consti- 
tuted courts  ;  that  is  to  say,  the  national  judiciary  will  not  have 
a  superior  jurisdiction  to  the  State  courts  in  reference  to  the 
application  of  the  rule  (private  law)  resting  on  the  will  of  the 
several  State,  but  will  have  jurisdiction  (appljdng  the  Conslita- 
tion  as  public  law)  to  decide  whether  the  application  of  the 
State  law  is  consistent  with  the  independent  exercise  of  the 
national  authority  in  reference  to  the  same  action  or  relations.'  ^. 

'  Houston  I'.  Moore,  5  Wheaton,  p.  2G,  24,  34;  Teal  v.  Felton,  12  Hownnl,  284, 
292:  Curtis'  Comm.  §§  119-122.  State  laws  punishing  the  offence  oF  circulating 
counterfeit  coin  of  the  U.  S.  may  be  enforced  on  the  ground  that  coi^terfeiting  the 
coin  of  the  U.  S.  and  circulating  such  coin  are  distinct  ofifences,     Yoy'v.  State  of  Ohio, 

5  Howard,  410;  State  p.  Tufi',  2  Bailoy  S.  C.  Rep.  44  ;  Common/^  i-.  Fuller,  8  Met- 
calf,  31;^  ;  State  v.  Randall,  2  Aikin's  Rep.  89;  1  Kent's  Comm.  §08,  and  404,  note. 

"  1  Kent's  Comm.  403. 

'  Federalist,  No.  82;  Martin  v.  Hunter,  1  Wheaton,  340-3,'51  ;  Cohens  v.  Virginia, 

6  Wheaton,  413;  Sturges  v.  Crowniushiold,  4  Wheaton,  192;  Story's  Couim.  §§  1731- 
1747;  Curtis'  Comm.  §§  115-119;  Duponceau  ou  Jur.  30. 


494  CONCURRENT   JURIDICAL   POWER. 

§  449.  It  is  evident  that  the  possession  or  enjoyment  of  in- 
dividual (ahsohite')  rights,  as  incident  to  some  relations  between 
natural  })ersons,  must  be  determinable  by  the  powers  of  civil  or 
criminal  jurisdiction  delegated  to  the  national  Government  for 
the  execution  of  specified  objects,  and  that,  therefore,  in  such 
cases  the  judicial  power  of  the  United  States  must  be  supreme 
in  determining  the  possession  of  these  rights.  But  since  the 
possession  of  the?e  rights  must  have  been  within  the  "  original," 
ordinary  or  general  jurisdiction  of  the  Sta+es,  independently  of 
the  formation  of  the  present  national  Constitution,  and  since  no 
general  power  to  determine  the  possession  of  these  rights  has 
been  delegated  to  the  national  Government,'  there  is  a  pre- 
sumption that  their  possession  or  non-possession  is  now  de- 
pendent upon  the  juridical  will  of  the  State  in  which  the  persons 
claiming  them  may  be  found. 

It  would  appear,  therefore,  that  the  judicial  power  of  the 
States,  at  least  in  applying  the  Constitution  as  public  law, 
must  always  be  concurrently  exercised  wherever  these  rights  are 
claimed  or  denied  ;  the  decision  made  in  the  exercise  of  that 
power  being  subordinate  to  the  national  judiciary,  applying  the 
private  law  derived  from  the  national  branch  of  powers  where 
the  question  is  made  under  such  law,  and  also  applying  the 
Constitution  as  public  law  to  determine  whether  the  rights  in 
question  are  dependent  on  the  powers  held  by  the  national  Gov- 
ernment. 

§  450.  Although  the  earlier  cases  show  a  difference  of  opinion 
on  this  topic,  these  principles  seem  to  have  been  recognized,  by 
a  great  weight  of  authority,  in  reference  to  the  right  of  personal 
liberty.  Thus,  in  cases  of  enlistment  into  the  army  of  the 
United  States,  it  seems  now  to  be  settled  that  the  State  courts 
wall,  under  habeas  corpus,  or  by  the  writ  de  homine  re2)Iegiando, 
try  the  question  of  unlawful  imprisonment,  when  it  is  "  by  an 
officer  of  the  United  States,  by  color  or  under  pretext  of  the 
authority  of  the  United  States."  Kent  says,  that  the  question  in 
favor  of  a  concurrent  jurisdiction  in  such  cases  is  settled  in  the 

*  Ante,  §  40.  »  Ante,  §  433. 


CONCURRENT   JURIDICAL    POWER.  495 

State  of  New  York,  and  that  "  there  has  been  a  similar  decision 
and  practice  by  the  courts  of  other  States."' 

So  in  other  cases  of  the  deprivation  of  that  right  under  color 
or  pretext  of  the  authority  of  the  United  States,  as  where  per- 
sons have  been  detained  under  suspicion  of  treason  against  the 
United  States,'^  or  as  alien  enemies,^  or  for  violations  of  the  laws 
of  Congress,^  and  on  other  causes  of  imprisonment.^  So  the 
State  courts  have  issued  the  writ  of  habeas  corpus^  in  cases  of 
persons  detained  for  extradition  under  treaties  between  the 
United  States  and  foreign  governments.®  And  the  same  con- 
current jurisdiction  has  always  been  claimed  by  the  State  courts 
in  cases  of  persons  detained  or  committed  as  fugitives  from  jus- 
tice or  from  labor  under  the  authority  of  the  United  States.'' 

'  1  Kent's  Comm.  401,  and'in  the  matter  of  Stacy,  10  Johnson's  R  328.  In  the 
previous  case  of  Ferguson,  9  Johns.  230,  Kent,  C.  J.,  was  of  opinion  tliat  the  State 
courts  had  no  jurisdiction  by  habeas  corpus  where  the  detention  was  under  cohor  of  au- 
thority of  the  U.  S.  ;  Thompson,  J.,  dissenting ;  other  judges  reserving  the  question 
as  the  case  was  decided  on  anotlier  ground.  Commonw.  v.  Harrison,  1 1  Mass.  Rep.  63  ; 
Comnionw.  v.  Gushing,  ibid.  67  ;  Commonw.  v.  Murray,  4  Binney,  487 ;  Commonw.  v. 
Fox,  7  Barr's  R.  Pennsyl.  336;  Carlton's  case,  7  Cowen,  47;  Roberts'  case,  in  1809, 
was  against  issuing  the  writ ;  Sergeant's  Const  Law,  283  ;  2  Hall's  Law  Jonraal,  195. 

"^  Commonv/.  v.  Holloway,  5  Binney,  512,  the  power  to  discharge  or  hold  to  bail 
claimed,  except  where  death  would  be  the  punisliment  under  the  statute. 

'  Case  of  Lockington,  5  HaU's  Law  Journ.  92,  313  ;  5  of  same,  301-330. 

■•  Case  of  Joseph  Almeida,  in  Maryland,  12  Niles'  Weekly  Reg.  115,  231,  Cases 
of  Booth  and  Rycraft,  (1854;)  3  Wisconsin  U.  1. 

^  Ex  parte  Sergeant,  by  Tilghman,  C.  J.,  8  Hall's  Law  Journ.  206 ;  Ex  parte  Pool 
and  others,  Nat.  Intell.  N.v.  10,"Dec.  11,  1821. 

The  earlier  cases  are  noted  here  from  Sergeant's  Const.  Law,  p.  282-287:  where 
also  the  opinion  of  Judge  Cheves  of  South  Carolina,  in  Ex  parte  Andrew  Rhodes,  12 
Niks'  W.  R.  264,  (1819,)  as  against  the  concurrent  jurisdiction  is  noted. 

^^■hether  the  State  courts  can  inquire  iiito  imprisonments  ordered  by  the  Houses  of 
Conoress,  is  a  question  of  the  extent  of  the  judicial  power  as  compared  with  privileges 
necessary  to  the  independent  exercise  of  the  co-ordinate  legislative  fmiction.  Ante, 
p.  487,  note. 

*  Metzger's  case,  where  the  prisoner  had  been  committed  by  a  U.  S.  district  judge, 
(Supreme  court,  N.  Y.,  1847,  Edmonds,  J.,)  1  Barbour,  248  ;  Heilbonn's  case,  where 
the  commitment  was  by  a  U.  S.  commissioner,  (same  court,  1853,  Mitchell,  J.,)  1  Parker's 
Criminal  Reports,  429.     But  compare  6  Opinions  of  U.  S.  Att'y  General,  p.  239. 

'  Comniw.  i:  Holloway,  (1816,)  2  Serg.  and  Rawle,  305;  case  of  George  Kirk,  Oct. 
1846,  4  N.  Y.  Legal  Observer,  456;^ca.se  of  Joseph  Belt,  Dec.  1848,  7  of  same,  8, 
before  Judge  Edmonds,  N.  Y.  Snpretile  Court;  Sims'  case,  7  Cushing,  285. 

The  decisions,  in  this  class  of  case^-,  which  maintain  the  claimant's  possession  under 
the  acts  of  Congress  do  not,  necessarily,  also  deny  this  concurrent  jurisdiction  of  State 
courts  to  inquire  into  the  lawfulness  of  the  restraint  exercised  under  color  of  those  acts. 
Such  power  in  the  State  courts  seems  to  have  been  admitted  in  Wright  v.  Deacon,  5 
Serg.  and  Rawle,  G2,  and  Jack  v.  Martin,  12  Wendell,  31  land  14  WendeU,  507,  where 
the  detention  was  justified. 

In  Jenkins'  case,  (otherwise  known  as  the  Wilkesbarre  slave  case,)  in  1853,  2  Wal- 
lace, jr.,  526,  Judge  Grier  thus  stated  the  general  rule :  "  But  State  courts  and  judges 


496  CONCURRENT   JUDICIAL   POWER. 

§  451.  Thus  far,  in  considering  (in  the  last  two  sections) 
by  whom  tlie  national  municipal  law  may  be  ajjphed,  the  ques- 
tion of  concurrent  judicial  power  exercised  by  State  courts  has 
been  presented  as  subordinate  to  that  of  concurrent  legislative 
(juridical)  State  power  as  manifested  by  its  three  functions,  in- 
cluding the  judicial.  But  there  is  another  form  in  which  the 
question  of  concurrent  judicial  power  arises  more  distinctly.' 

In  the  exposition  given,  in  the  second  chapter,  of  those  ele- 
mentary princi])les  which  take  effect  as  private  international  law, 
it  was  shown  that  the  tribunals  of  one  national  jurisdiction  may 
recognize  the  effects  (rights  and  obligations)  created  by  laws 
which  have  originated  in  the  juridical  will  of  a  foreign  possessor 
of  sovereign  power,  when  the  persons  come  within  that  jurisdic- 
tion who  have  sustained  relations  caused  by  anterior  subjection 
to  those  laws.  By  applying  these  principles,  it  might  be  held, 
in  many  cases,  that  the  State  courts  would,  in  the  exercise  of 
the  judicial  power  of  the  several  States,  have  authority  to  en- 
force the  laws  of  Congress,  (criminal  laws,  perhaps,  being  ex- 
cepted,*^)  when  the  persons  are  within  the  territorial  jurisdiction 

have  no  power,  under  a  habeas  corpus,  to  review  or  sit  in  error  upon  the  judfjnient  or 
process  of  the  judicial  officers  of  the  United  States  acting  within  the  jurisdiction  com- 
mitted to  them,  as  has  sometimes  been  done  ;"  and  held  that  the  State  courts  had  no 
concurrent  jurisdiction  in  these  cases;  applying  the  rule  with  an  assumption  that  the 
law  of  Congress,  of  ISoO,  in  making  the  certificate  of  a  commissioner  or  a  judge  of  the 
United  States,  "conclusive  evidence  of  the  right  of  the  person  or  persons  in  whose 
favor  it  is  granted  to  remove  such  fugitive,"  and  forbidding  "  all  molestation  of  such 
person  or  persons  b}-  any  process  issued  by  any  court,  judge,  magistrate,  or  other  person 
whomsoever,"  must  be  recognized  as  constitutional  by  every  State  court ;  that  is,  as- 
sumed that  the  officers  were  judicial  and  were  "acting  within  the  jurisdiction,"  which 
might,  under  the  Constitution,  be  committed  to  them.  The  original  warrant  for  the 
arrest  of  a  negro  as  a  fugitive  from  labor,  which  occasioned  the  conflict  of  jurisdiction 
in  this  case,  had  been  issued  out  of  the  circuit  court. 

Judge  Nelson,  in  his  charge  to  a  grand  jury,  in  the  city  of  New  York,  April,  1851. 
Blatchford's  C.  C.  li.  p.  G-tl,  denies  that  the  State  courts  may  issue  the  writ  to  inquire 
into  the  legality  of  the  detention  under  color  of  this  law,  either  on  the  ground  that 
such  detention  is  not  warranted  by  the  statute,  or  that  the  statute  is  unconstitutional ; 
saying,  "  it  is  obvious  that  the  existence  of  eith(^r  power  on  the  part  of  the  State  tri- 
bunals would  be  fatal  to  the  authority  of  the  C^idastitution,  laws,  and  treaties  of  the 
general  government."  referring  to  U.  S.  v.  Peters,  (Olmstead's  case,)  5  Cranch,  11.5. 

The  question  whether  the  State  courts  have  this  power  of  concurrently  inquiring 
into  the  cause  of  detention,  is  distinct  from  tbat  of  the  power  of  the  States  to  determine 
on  the  claim  of  the  owner  exclusively  of  any  authority  exercised  under  laws  of  Con- 
gress. The  State  laws  and  judicial  decisions  which  are  based  on  such  a  view  of  the 
public  law  of  the  United  States  are  to  be  noticed  in  another  place. 

'  Houston  V  Moore,  5  Wheaton,  p.  24;  Curtis'  Comm.  p.  171-175. 

"  Tl'.is  delicate  question  has  been  the  subject  of  much  juristical  discussion.  It  is 
not  easy  to  marshal  the  authorities.     In  favor  of  such  concurrent  judicial  power  seem 


CONCURRENT   JUDICIAL   POWER.  497 

of  the  State,  who,  under  those  laws,  have  acquired  rights  or 
incurred  obligations. 

That  exercise  of  judicial  power,  by  the  tribunals  of  any  one 
nation  applying  laws  in  a  forum  wherein  those  laws  have  no 
proper  territorial  extent,  was  derived  from  the  presumption  that 
such  laws  are  jural,  and,  therefore,  presumptively  identified 
with  the  juridical  will  of  the  supreme  power  in  the  forum,  from 
whose  appointment  those  tribunals  derive  their  existence.  But 
in  laying  a  foundation  for  the  exercise  of  judicial  power  by  a 
State  tribunal,  in  support  of  rights  and  obligations  arising  under 
the  national  municipal  law,  including  the  legislation  of  Congress, 
there  is  an  additional  reason  for  a  recognition,  on  the  part  of 
the  State  tribunals,  of  the  jural  character  of  that  legislation. 
This  is,  that  it  is  based  upon  the  Constitution,  to  which  the 
people  of  each  State  is  a  consenting  or  constituent  party,  and  that 
the  laws  or  rules  of  action  comprehended  in  the  national  muni- 
cipal law  have  territorial  and  personal  extent  within  the  forum 
of  State  jurisdiction,  independently  of  the  principle  of  comity, 
as  it  has  herein  before  been  set  forth. 

§  452.  This  idea  appears  to  be  the  foundation  of  the  opinion 
of  Judge  Piatt,  dissenting  from  the  other  judges  of  the  Supreme 
Court  of  New  York,  in  United  States  v.  Lathrop,  17  Johnson, 
pp.  11-22  ;  in  which  he  refers  to  a  jDassage  in  No.  82  of  the 
Federalist,  by  Hamilton,  in  which  these  principles  of  a  universal 
jurisprudence  and  private  international  law  are  recognized  ;  "  I 
am  even  of  ojiinion  that  in  every  case  in  which  they  [the  State 
courts]  were  not  expressly  excluded  by  the  future  acts  of  the 
national  legislature,  they  will,  of  course,  take  cognizance  of  the 


to  be,  the  majority  of  the  court  in  Houston  v.  Moore,  5  Wheaton,  1 ;  Federalist,  No.  82 ; 
1  Kent,  398-400 ;  Rawle  on  Const,  cb.  xx,  note ;  Judge  Piatt,  dissenting,  in  U.  S.  v. 
Lathrop,  1  Johns.  R.  5  ;  Buckwalter  v.  U.  S.,  11  Serg.  and  Rawle,  196.  Against  the 
exercise  of  such  power,  Story  and  Johnson,  Justices,  dissenting,  in  Houston  v.  Moore, 
5  Wheaton,  32,  47;  Story  Coram.  §  1751 ;  Story  J.,  in  Martin  v.  Hunter,  1  Wheaton, 
337 ;  Commonw.  v.  Feely,  Virginia  Cases,  321 ;  Ely  v.  Peck,  7  Conn.  R.  239 ;  U.  S.  v. 
Campbell,  6  Hall's  Law  Joum.  113,  U.  S.  v.  Lathrop,  17  Johns.  5,  7,  a  suit  for  penalty 
under  act  of  Congress  conferring  jurisdiction  on  State  court.  In  U.  S.  v.  Dodge,  14 
Jobnson,  on  the  bond  of  a  U.  S.  collector,  where  jurisdiction  was  given  by  an  act  of 
Congress  to  State  courts,  the  suit  was  sustained. 

See  comparison  of  authorities  in  Sergeant's  Const.  Law.  ch.  27  ;  Rawle  on  Const. 
ck  20,  24 ;  1  Kent's  Comm.  395-404,  Lect,  18 ;  Curtis'  Comm.  §§  134-144. 

32 


498  CONCURRENT   JUDICIAL   POWER. 

causes  to  which  those  acts  may  give  birth.  This  I  infer  from 
the  nature  of  judiciary  power  and  from  the  general  genius  of  the 
system,  [i.  e.,  American  Constitution.]  The  judiciary  power  of 
every  government  looks  beyond  its  own  local  or  municipal  laws, 
and  in  civil  cases,  lays  hold  of  all  subjects  of  litigation  between 
parties  within  the  jurisdiction,  though  the  causes  of  dispute  are 
relative  to  the  laws  of  the  most  distant  part  of  the  globe.  Those 
of  Japan,  not  less  than  of  New  York,  may  furnish  the  objects  of 
legal  discussion  to  our  courts.  When  in  addition  to  this  we 
consider  the  State  governments  and  the  national  Government, 
as  they  truly  are,  in  the  light  of  kindred  systems  and  as  parts  of 
one  whole,  the  inference  seems  to  be  conclusive,  that  the  State 
courts  would  have  a  concurrent  jurisdiction  in  all  cases  arising 
under  the  laws  of  the  Union,  where  it  was  not  expressly  pro- 
hibited." ' 

§  453.  The  general  principles  from  which  a  concurrent  juris- 
diction in  the  State  courts,  it  is  here  supposed,  may  be  derived, 
would  appear  to  support  that  jurisdiction  over  persons  or 
things  within  the  territorial  limits  of  the  State  forum,  in  all 
cases.  But  it  seems  to  be  generally  admitted  that  the  con- 
current judicial  power  is,  at  least,  applicable  where  the  action 
and  relations  affected  by  the  national  law  are  such  as  "  origi- 
nally" or  "  previous  to  the  Constitution"  were  within  the  juris- 
diction of  the  State  ;  that  is,  its  legislative  or  juridical  power, 
including  the  judicial  power  of  its  courts.^ 

§  454.  It  has  generally  been  admitted  that  not  every  grant 

*  And  see  Story's  Comm.  §§  175X-17o3 ;  Duponceau  on  Jurisd.  p.  26. 

2  Ante,  §  447;  1  Kent's  Comm.  397;  Curtis'  Comm.  §§  119-122;  Story's  Comm. 
§  1751,  and  iu  Martin  v.  Hunter,  1  A\Tieaton,  337 ;  "  and  it  can  only  be  in  those  cases, 
where,  previous  to  the  Constitution,  State  tribunals  possessed  jurisdiction  independent 
of  national  authority  that  they  can  now  constitutionally  exercise  a  concurrent  juris- 
diction." Federalist,  No.  82,  "  But  this  doctrine  of  concurrent  jurisdiction  is  only 
clearly  applicable  to  those  descriptions  of  causes  of  which  the  State  courts  have  previous 
cognizance.  It  is  not  equally  evident  in  relation  to  cases  which  may  grow  out  of,  and 
be  peculiar  to,  the  Constitution  to  be  established ;  for  not  to  allow  the  State  courts  a 
riglit  of  jurisdiction  in  such  cases,  can  hardly  be  considered  as  the  abridgment  of  a 
pre-existing  authority,"  cited  in  Stoiy's  Comm.  §  1752.  In  another  sentence  of  the 
same  number  of  the  Federalist  the  expression  is  used,  "  the  State  courts  will  retain  the 
jurisdiction  they  now  have  unless,"  &c. 

^lost  of  the  opinions  which  are  against  the  exercise  of  the  State  power  in  enforcing 
the  penal  law  of  the  U.  S.,  {ante^  p.  497,  note,)  may  have  been  based  on  this  distinction. 
Compare  Curtis'  Comm.  §  137. 


THE    STATES    MAY    RESTRICT    IT. 


499 


of  power  to  Congress  to  legislate,  in  reference  to  certain  objects, 
requires  the  inference  that  such  power  is  either  exclusive  or 
may  at  any  time  be  made  so  by  Congress.'  In  some  of  the 
cases,  while  it  was  admitted  that  there  might  be  a  legislative 
power  in  the  States  in  reference  to  many  subjects  which  the 
Constitution  places  within  the  reach  of  the  national  organ  of 
legislation,  it  has  been  further  held  that  the  actual  legislation  of 
Congress  precluded  the  operation  of  all  legislative  action  on  the 
part  of  the  States  in  reference  to  the  same  subject  matter.  =^  The 
doctrine,  pushed  to  this  extent,  has  always  been  very  generally 
disputed.  If  taken  literally  or  strictly,  there  can  be  no  such 
thing  as  concurrent  legislation,  even  if  it  can  be  said  that  there 
is  such  a  thing  as  concurrent  legislative  power. 

But  whatever  may  be  the  true  doctrine  as  to  the  concurrent 
legislative  power,  the  principles  which  would  restrict  it  would 
not  have  equal  force  in  limiting  the  concurrent  exercise  of  ju- 
dicial power  in  applying  rules  which,  having  derived  their  ex- 
istence from,  or  having  originated  in  the  national  branch  of 
powers  and  not  in  the  State's  powers,  may  still  be  assumed  by 
the  State's  tribunals  to  be  identified  with  the  juridical  ^  will  of 
the  State. 

§  455.  If  the  States,  in  their  possession  of  sovereign  powers, 
can  hold  the  judicial  function,  in  any  degree,  with  reference  to 
the  national  municipal  law,  yet,  on  the  other  hand,  in  consider- 
ing whether  their  courts  shall  exercise  it,  it  must  be  supposed, 
(since  there  is  no  provision  in  the  Constitution  of  the  United 
States  respecting  the  exercise  of  the  judicial  function  of  the 
States,)  that  the  States  may  confine  the  jurisdiction  of  tribunals 
created  by  themselves  within  any  Hmits  they  may  see  fit.     They 

'  1  Kent,  388 ;  Houston  v.  Moore,  5  Wheaton,  49. 

"  1  Kent's  Comm.  391 ;  Story's  Comm.  §§  441-447 ;  Sturges  v.  Crowninsliield,  4 
Wteaton,  193;  Steamboat  Co.  v.  Livingston,  3  Cowen,  714,  71G;  Jack  v.  Martin,  12 
Wendell,  317,  318,  320;  Prigg  v.  Pennsylvania,  16  Peters,  542,  against  concurrent  le- 
gislative power  in  the  States  relative  to  the  execution  of  the  constitutional  provision 
for  the  delivery  of  fugitive  slaves,  held  by  Justices  Story,  Baldwin,  Wayne,  and  McLean. 
Taney,  C.  J.,  and  Justices  Thompson  and  Daniel,  dissenting. 

^  The  use  oi  juridical,  as  a  more  comprehensive  term  than  legislative,  must  be  ad- 
mitted in  explaming  how  the  judicial  power  of  the  States  may  be  exercised  in  ref- 
erence to  action  and  relations  determined  by  the  national  branch  of  powers,  and  in 
respect  to  which  the  State  cannot,  or  has  not  exercised  its  legislative  power  concur- 
rently. 


500  DISTINCTION   OF   COURTS. 

miglit  then  allow  their  judicial  officers  to  administer  only  that 
law  which  rests  upon  State  authority  solely,  or  restrict  them 
from  exercising  jurisdiction  in  ap})lying  any  part  of  the  national 
law  or  some  specific  parts  of  that  law  : '  though  the  State  courts 
would  still,  in  any  case,  as  was  above  said,  he  obliged  to  apply 
the  national  law  so  far  as  it  may  be  jiublic  law  or  the  evidence 
of  political  powers  and  obligations. 

§  456.  But  if  the  above  argument  derived  from  principle  is 
correct,  the  State  courts  will,  unless  expressly  prohibited  by  the 
State,  have  jurisdiction  to  apply  the  national  law  when  that 
law  affects  persons  and  things,  within  their  forum  of  jurisdiction, 
in  reference  to  circumstances  (action  and  relations)  which  would 
be  within  the  State's  legislative  or  juridical  power,  "  before  the 
Constitution,"  or,  if  the  present  national  or  federative  organiza- 
tion did  not  exist ;  provided  the  State  courts  are  such  as  hold, 
or  are  invested  with,  the  ordinary  or  general  judicial  power  of 
the  State,  or  are  tribunals  "  proceeding  according  to  the  course 
of  common  law  ;"  or,  negatively,  are  not  courts  of  limited  or 

'  Sergeant's  Const.  Law,  1st  ed.  p.  274;  Story's  Comm.  §  1755  ;  1  Kent's  Coinm. 
pp.  400-404,  p.  402.  "  The  doctrine  seems  to  be  admitted  that  Congress  cannot 
compel  a  State  court  to  entertain  jurisdiction  in  any  case ;"  noting  Dewey,  J.,  Mass. 
Supreme  C,  Law  Reporter,  April,  184G,  Ward  v.  Jenkins;  "The  doctrine  now  is,  that 
ConcTess  cannot  compel  a  State  court  to  take  any  jurisdiction.  But  where  the  State 
court  has  jurisdiction  otherwise,  it  is  no  objection  to  its  executing  it  that  the  rights 
arise  luider  a  statute  of  the  United  States." 

Story,  J.,  in  Prigg  v.  Commonw.  of  Pennsylvania,  16  Peters,  614,  "since  every 
State  is  perfectly  competent  and  has  the  exclusive  right  to  prescribe  the  remedies  in 
its  own  judicial  tribunals,  to  limit  the  time  as  well  as  the  mode  of  redress,  and  to  deny 
jurisdiction  over  all  cases  wliich  its  own  policy  and  its  own  institutions  either  prohibit 
or  discountenance."  Mr.  Justice  ^tcLcan,  in  the  same  case,  p.  665,  as/iuminff  that  the 
Governors  of  the  States,  in  delivering  up  fugitives  from  justice,  when  demanded  by  other 
States,  in  the  manner  prescribed  by  the  act  of  Congress  reliting  to  such  persons,  de- 
rive their  pou-er  to  do  so  from  the  U.  S.  and  not  from  the  State,  says,  "  Now,  if  Con- 
gress may  by  legislation  require  this  duty  to  be  performed  by  the  highest  State  officer, 
may  they  not,  on  the  same  principle,  require  appropriate  duties  in  regard  to  the  sur- 
render of  fugitives  from  labor,  by  other  State  officers  ?  Over  these  subjects  the  con- 
stitutional power  is  the  same."  The  term,  "  appropriate  duties,"  is  apparently  used  in 
the  sense  of  duties  appropriate  to  the  functions  held  by  the  State  officers ;  and  since,  on 
pp.  667,  669,  Judge  McLean  speaks  of  the  State  officers  to  whom  he  refers  as  being 
"  judicial  officers,"  it  would  seem  to  be  his  opinion  either  that  persons  clothed  with  the 
judicial  function  of  the  State  were  bound  to  exercise  it,  to  carry  out  a  law  of  Congress 
when  required  by  the  national  legislature,  or  else  that  by  some  principle  of  public  law 
such  persons  were  bound  to  accept  the  judicial  function  derived  from  the  United  States. 
Taney,  C.  J.,  said  in  same  case,  p.  630,  "  The  State  officers  mentioned  in  the  law  are 
not  bound  to  execute  the  duties  imposed  upon  them  by  Congress,  unless  they  choose 
to  do  so,  or  are  required  by  a  law  of  the  State ;  and  the  State  legislature  has  the 
power,  if  it  thinks  proper,  to  prohibit  them." 


COURTS    OF    ORDINARY   JURISDICTION.  501 

special  jurisdiction,  not  proceeding  according  to  the  course  of 
common  law. ' 

§  457.  In  such  case  it  may  not  only  be  within  the  power, 
hut  also  be  within  the  duty  of  the  State  courts  to  apply  the 
national  law,  whether  found  in  the  Constitution  taking  effect 
as  private  law,  or  derived  from  the  legislative  powers  of  Con- 
gress.'^ 

*  Jurisdicticm,  is  here  called  general  or  ordinary  in  reference  to  the  possession  of 
tlie  judical  function  for  the  enforcement  of  the  entire  body  of  rules  whose  authority 
rests  on  the  juridical  will  of  the  sovereij^u  power,— the  law  of  the  land,  the  municipal 
law.  Some  courts  having  §uch  general  or  ordinary  jurisdiction  may  still  be  limited  or 
inferior  courts,  in  reference  to  the  fact  of  their  holding  this  function  in  and  for  a  lim- 
ited forum  or  geographical  jurisdiction,  a  subdivision  of  the  entire  territorial  dominion 
of  the  sovereignty',  whose  law  they  apply,  and  in  reference  to  the  existence  of  higher 
courts  to  which  an  appeal  may  he  made  from  their  judgments.  For  a  distinction  of 
such  courts,  see  Kempe's  lessee  v.  Kennedy,  5  Cranch,  185;  Murray  v.  Fitzpatrick,  17 
"Wendell,  483,  and  cases  there  cited.  That,  in  rel;>dng  on  a  judicial  decision,  the  .juris- 
diction of  this  class  of  courts  is  presumed,  while  that  of  courts  of  special  jurisdiction 
must  be  traced  back  to  some  enabling  act  of  the  sovereign,  see  Jones  v.  Reed,  1  Johns. 
Cases,  20,  and  1  Gaines'  R.  594,  note.  Wells  v.  Newkirk,  1  Johns.  Cases,  228 ;  Bloom 
V.  Burdick,  1  Hill,  139.  And  compare  Clinton,  Senator,  m  Yates  v.  Lansing,  9  Johnson 
R.  431-437. 

*  1  Kent's  Comm.  397-400 ;  Ward  v.  Mann,  Supr.  Court  of  Mass. ;  Law  Reporter, 
March,  1847. 

By  the  act  of  Congress,  of  12  Feb.  1793,  §  3,  the  judges  of  the  U.  S.  Circuit  and 
District  Courts  and  certain  persons  therein  described  as  "  any  magistrate  of  a  county, 
city,  or  town  corporate,"  are  authorized  to  perform  certain  acts  in  reference  to  persons 
claimed  as  fugitives  from  labor.  In  Prigg's  case,  16  Peters',  539,  the  question  de- 
cided was  of  the  validity  of  a  statute  of  Pennsylvania  affecting  persons  to  whom  that 
law  of  Congress  applied ;  and,  as  preUminary  to  the  question  of  the  force  of  the  State 
law,  the  question  of  the  power  of  Congress  and  the  constitutionality  of  the  law  of  1793 
was  examined.  To  this  extent,  of  recognizing  the  power  of  Congress  and  its  having 
been  exercised  in  such  a  manner  as  to  exclude  the  operation  of  State  legislation,  (rinfe, 
§  452,)  the  constitutionality  of  the  law  of  1793  was  affirmed.  Under  the  circumstances 
of  that  case,  no  right,  power,  or  authority  derived  from  any  such  "  State  magistrate' 
was  claimed  for  or  relied  upon  by  any  of  the  parties.  The  only  members  of  the  court 
who,  in  their  several  opinions,  refer  to  the  action  of  "  State  magistrates"  under  the  act 
were  Mr.  Justice  Story,  dehvering  the  Opinion  of  the  Court,  p.  622,  and  saying,  that 
the  constitutionality  of  the  act,  in  its  leading  provisions,  was  free  from  reasonable  doubt 
or  difficulty  "  with  the  exception  of  the  part  which  confers  authority  on  State  magis- 
trates,'' but  that  no  doulit  was  entertained  that  they  might,  if  they  chose,  exercise  that 
authority,  uidess  prohibited  by  State  legislation ;  Chief  Justice  Taney,  p.  630,  saying, 
"  The  State  officers  mentioned  are  not  bound  to  execute  the  duties  imposed  upon  them 
by  Congress,  unless  they  choose  to  do  so,  or  are  required  to  do  so  by  the  law  of  the 
State  ;  and  the  State  legislature  has  the  power,  if  it  thmks  proper,  to  prohibit  them  ;" 
and  Mr.  Justice  McLean,  p.  664,  665,  who,  alone,  held  that  the  duty  might  be  im- 
posed on  the  State  officers  by  Congress. 

But  it  would  appear,  from  every  thing  said  by  the  Justices  on  this  point,  that  they 
held  that,  whatever  power  should  be  exercised  by  tiie  State  officers  in  the  supposed 
cases,  would  be  the  concurrent  jiuUcial  power  of  the  State. 

The  author  may  reasonably  hesitate  in  making  this  assertion,  in  view  of  the  opinion 
of  the  Supreme  Court  of  Massachusetts,  pronounced  by  Chief  Justice  Shaw,  in  Sims'  case, 
7  Cushing,  285,  who,  after  noticing,  p.  302,  that  it  had  in  that  case  been  "  insisted  that 
the  Commissioner,  before  whom  tlie  petitioner  [the  fugitive]  had  been  brought,  is  in 
the  exercise  of  judicial  powers  not  warranted  by  the  Constitution  because  not  commis- 


502  POWER  ONLY  WITHIN  THE  STATE. 

§  458.  This  concurrent  judicial  power  in  the  State  courts 
would,  it  will  be  noticed,  be  limited,  even  while  applying  a  nile 
of  the  national  municipal  law,  by  the  same  political  conditions 
which  limit  their  judicial  function  in  the  application  of  local 
law.  It  will  be  operative  only  within  the  limits  of  the  State, 
whether  the  law  applied  is  derived  from  the  juridical  authority 
of  the  United  States  or  from  that  of  the  State.  It  is  the  ju- 
dicial function  of  the  United  States  only,  which  is  equally  au- 
thoritative in  all  parts  of  the  dominion  of  the  people  of  the 
United  States/  and  that  this  function  cannot  be  exercised  by 
the  State  court  is  a  proposition  directly  deducible  from  the 
Constitution,  and  there  is  no  judicial  decision  which  attempts 
to  support  a  contrary  doctrine.^ 

From  these  necessary  limitations  of  the  extent  of  State  ju- 
dicial power,  the  rule  of  action  which  they  thus  concurrently 
apply  will,  although  the  same,  in  its  origin  and  in  its  purpose 

sioned  as  a  judge,  nor  holding  his  office  during  good  behavior,"  argued  that  Con- 
gress, in  the  act  of  1793,  manifestly  did  not  deem  that  the  action  of  the  State 
magistrates  would  be  judicial  in  the  premises ;  .ind,  in  referring  to  the  cases  arising 
under  that  law  as  sustaining  this  doctrine,  cited  the  above  opinion  of  Ithe  Supreme 
Court  of  the  U.  S.  as  most  conclusive,  adding,  p.  308,  "  In  the  only  particular  in 
which  the  constitutionality  of  the  law  of  Congress,  of  Sept.  1850,  is  now  called  in 
question,  that  of  1793  was  obnoxious  to  the  same  objections,  that  of  authorizing  a 
summary  proceeding  before  officers  and  magistrates  not  qualified  under  the  Consti- 
tution to  exercise  the  judicial  power  of  the  general  Government." 

The  same  view  of  the  point  decided  in  Prigg's  case  seems  to  have  been  adopted  by 
Judge  Nelson,  in  his  charge  to  the  grand  jury,  Blatchford's  Cir.  C.  Iv.  G43 ;  slluding 
to  the  objected  unconstitutionality  of  the  law  of  1 850  in  its  grant  of  powers  to  the 
U.  S.  Commissioners ;  "  It  is  sufficient  answer  to  this  suggestion  that  the  same  power 
was  conferred  upon  State  magistrates  by  the  act  of  1793,  and  which,  in  the  case  of 
Prigg,  was  held  to  be  constitutional  by  the  only  tribunal  competent  under  the  Consti- 
tution to  decide  that  question.  No  doubt  was  entertained  by  any  of  the  judges  in  that 
case  that  these  magistrates  had  power  to  act,  if  not  forbidden  by  the  State  author- 
ities." 

It  seems  to  have  been  assumed,  by  these  authorities,  that  the  court  in  Prigg's  case 
intended  to  sanction  the  application  of  the  law  of  1793,  by  some  persons  who  could 
neither  hold  the  judicial  power  of  the  U.  S.,  (^post,  §  460,)  nor  exercise  the  concurrent 
judicial  power  of  a  State,  (ante,  §  -156.)  It  will,  in  a  later  portion  of  this  work,  be  urged 
that  this  assumption  is  unwaiTantable :  1st,  because  it  is,  at  least,  doubtful  whether  the 
action  of  any  such  person  under  thnt  law  was  involved  in  any  of  the  earlier  cases 
which  were  approved  by  the  court  in  Prigg's  case,  (16  Peters',  621,)  and  the  court  does 
not  otherwise  define  the  "State  magistrates,"  whose  action  it  sanctions;  and,  2d,  be- 
cause the  court  in  that  case  speaks  of  such  action  only  as  an  exercise  of  judicial  power. 

»  Ante,  U  375,  379. 

■•^  But  Judge  Crawford,  of  the  Supreme  Court  of  Wisconsin,  in  the  matter  of  Booth, 
3  Wisconsin  R.  p.  81,  82,  dissenting  from  the  majority  of  the  court  in  respect  to  the 
constitutionality  of  the  law  of  1850,  seems  to  have  held  that,  in  maintaining  the  action 
of  State  magistrates  under  the  law  of  1 793,  and  of  U.  S.  Commissioners  under  that  of 
1850,  the  doctrine  is  involved,  that  they  may  constitutionally  exercise  judicial  power 
derived  from  the  United  States. 


SUBJECT   TO    NATIONAL   JUDICIARY.  503 

or  direct  effect  on  private  persons,  as  that  applied  by  the  na- 
tional judictary,  be  essentially  local  in  its  authority  and  terri- 
torial jurisdiction,  and  equivalent  to  a  law  derived  from  a  dif- 
ferent political  source,  that  is,  to  a  local  municipal  law.  This 
will  certainly  be  so  if,  on  the  authorities,  this  concurrent  ai:)pli- 
cation  of  a  national  law  by  the  State's  judicial  power  is  to  be 
limited  to  cases  where  the  action  and  relations  affected  are  such 
as  were  "  originally"  within  the  juridical  power  of  the  State,  or 
such  as  may  be  within  the  concurrent  legislative  (juridical) 
power  of  the  State,  according  to  the  standard  already  stated  in 
considering  the  extent  of  that  power. 

§  459.  Though  it  should  be  admitted  that  a  rule  in  reference 
to  certain  action  and  relations  is  supported  both  by  the  juridical 
authority  of  a  State  and  that  of  the  United  States,  and,  there- 
fore, as  above  held,  may  be  applied  by  the  judicial  power  ema- 
nating from  either  ;  yet,  since  it  is  supposed  that  the  Consti- 
tution assigns  the  power  over  such  action  and  relations  to  the 
national  Government,  the  judicial  power  of  the  State  in  this 
case  of  its  concurrent  exercise  must  be  subject  to  that  of  the 
United  States. 

The  judgment  of  the  State  court,  applying  the  national  law 
in  reference  to  such  action,  must  always  be  subject  to  the  na- 
tional judiciaiy,  ^  and  if  the  law  involved  criminal  punishment, 
the  sentence  of  the  State  court  might  j)roperly,  it  would  seem, 
be  annulled  by  the  pardoning  power  of  the  national  executive. '^ 
In  this  instance  the  national  judiciaiy  would  control  the  State 
judiciary  in  the  application  of  private  law  :  not,  as  in  the  instance 
before  mentioned,  (§  448,)  control  the  juridical  action  of  the 
State  by  ai-)plying  the  Constitution  as  j^ublic  law. 

§  460.  With  the  consent  of  the  State,  from  wliich  they  derive 
their  existence  and  legal  personality,  and  subject  to  the  cohtrol  of 
the  judicial  power  vested  in  the  national  Government,  the  State 

'  Martin  v.  Hunter,  1  Wheaton,  337,  352;  Federalist,  No.  82;  1  Kent's  Comm. 
320,  390,  397;  Const.  Art.  III.  sec.  2,  1.  "The  judicial  power  shall  extend  to  all 
cases  in  law  and  equity,  arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  he  made  under  their  authority." 

'  See  the  difBculties  suggested  as  to  concurrent  criminal  jurisdiction,  1  Kent's 
Comm.  404;  Mattison  v.  the  State,  3  Missouri  It.  301. 


504  APPOINTMENT    OF    JUDICIARY. 

courts  might,  it  would  appear,  be  invested  with  the  judicial 
power  of  the  United  States  in  reference  to  persons*  and  things 
within  the  limits  of  their  State  jurisdictions  and  be  considered 
inferior  courts,  such  as  are  mentioned  in  the  first  section  of  the 
third  Article  of  the  Constitution  ;  if  the  tenure  of  office  by  the 
judges  of  all  courts  holding  the  judicial  jiower  of  the  United 
States  were  not  so  prescribed  as  to  be  inconsistent  with  its  in- 
vestiture in  persons  known  or  described  as  representatives  of 
State  powers.'  A  person  holding  the  judicial  power  of  a  State 
might,  apparently,  be  also  appointed,  in  the  manner  prescribed 
in  the  Constitution,  a  judge  of  one  of  those  courts  in  which  the 
judicial  power  of  the  United  States  is  to  be  invested  ;  in  wliich 
case  there  would  be  two  separate  tribunals  represented  in  his 
person.  But  if  the  judicial  power  of  the  United  States  should 
be  conferred  on  a  person  only  in  virtue  of  his  official  character 
derived  from  the  State,  or  as  being  a  State  officer,  his  tenure  of 
that  judicial  power  would  be  dependent  on  the  will  of  the  State. 
Therefore,  State  judicial  officers  or  magistrates  cannot,  as  such, 
or  in  their  public  capacity,  hold  the  judicial  power  of  the  United 
States  to  ajDply  the  national  municipal  law.- 

§  461.  According  to  the  first  section  of  the  third  Article, 
the  judicial  power  of  the  United  States,  whatever  that  may  be, 
is  to  be  invested  "  in  one  Supreme  Court  and  in  such  inferior 
courts  as  Congress  may  ordain  and  establish."  Judges  of  the 
Supreme  Court  must,  according  to  the  second  section  of  the 
second  Article,  be  appointed  by  the  President  and  Senate.     By 

'  Art.  III.  sect.  1.  "  The  judicial  power  of  the  United  States  shall  be  vested  in 
one  supreme  court  and  in  such  inferior  courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish.  The  judges  both  of  the  supreme  and  inferior  courts  shall  hold 
their  offices  during  good  behavior,  and  shall,  at  stated  times,  receive  for  their  services 
a  compensation,  which  shall  not  be  diminished  dtiring  their  continuance  in  office." 
Art.  II.  sect.  2,  (of  the  powers  of  the  President)  parag.  2.  "  He  shall  nominate  and, 
by  and  with  tlie  advice  and  consent  of  the  Senate,  shall  appoint  ambassadors,  other 
public  ministers,  and  consuls,  judges  of  the  supreme  court,  and  all  other  officers  of  the 
United  States  whose  appointments  are  not  herein  otherwise  provided  for,  and  which 
shall  be  established  by  law.  But  the  Congress  may,  by  law,  vest  the  appointment,  of 
such  inferior  officers  as  they  think  proper,  in  the  President  alone,  in  the  courts  of  law, 
or  in  the  heads  of  departments." 

''  JMarthi  v.  Hmiter,  1  Wheaton,  330.  Stoiy  J.  "  Congress  cannot  vest  any  portion 
of  the  judicial  power  of  the  United  States  except  in  courts  ordained  and  established  by 
itself."  Story's  Comm.  §  1755;  1  Kent's  Comra.  399  ;  case  of  Almeida,  from  12  Xiles' 
W.  R.  115,  213;  Pool  and  others,  from  Nat.  luteUigencer,  Nov.  10,  and  Dec.  11,  1821, 
cited  in  Sergeant's  Constitutional  Law,  1st  ed.  274. 


OF    MINISTERIAL    OFFICERS.  505 

the  various  acts  relative  to  the  national  judiciary  the  judges  of 
the  Supreme  Court  are  severaEy  the  judges  of  the  different  Circuit 
Courts,  the  highest  of  the  courts  inferior  to  the  Supreme  Court. 
The  Circuit  Courts  and  the  Supreme  Court  being  distinct  in 
their  jurisdiction,  although  the  same  persons  are  judges  in  each.' 
The  judges  of  the  District  Courts  have  been  appointed  in  like 
manner  by  the  President  and  Senate  ;  though,  according  to  the 
language  of  the  second  section  of  the  second  Article,  they  might 
be  otherwise  appointed.  The  judges  of  these  courts  are  under- 
stood to  hold  office  according  to  the  terms  of  the  first  section  of 
the  third  Article, — "  The  judges  both  of  the  supreme  and  infe- 
rior courts  shall  hold  their  offices  during  good  behavior,  and 
shall,  at  stated  times,  receive  for  their  services  a  compensation, 
which  shall  not  be  diminished  during  their  continuance  in  of- 
fice." 2 

§  462.  If  the  judicial  power  of  a  state  is  exercised  only  when 
its  laws  are  applied  by  persons  having  the  name  oi  judge  or  ju- 
dicial officer,  performing  their  duties  with  that  style  and 
manner  which  includes  times,  terms,  and  places  of  action  pub- 
licly determined,  with  a  permanent  record  by  subordinate  offi- 
cers of  that  application  in  its  details,  accessible  to  public  in- 
spection, it  may  be  said  that  the  judicial  power  of  the  United 
States  has  been  vested  by  Congress  only  in  courts  whose  judges 
hold  their  office  according  to  the  constitutional  requirements. 
But  if  the  nature  of  the  judicial  power  is  independent  of  the 
name  or  title  of  the  official  person  exercising  it,  the  times  and 
places  in  which  it  is  exercised,  and  the  degree  of  solemnity  with 
which  it  is  surrounded,  there  is  a  question  of  the  comparative  ex- 
tent of  that  power  which,  in  the  Constitution,  is  called  the 
judicial  power  of  the  United  States.  Or,  in  other  words,  it 
being  supposed  that  there  is  an  administrative  or  ministerial 
application  of  the  national  municipal  law,  as  well  as  a  judicial 
one,  the  inquiry  must  be  made,  how  far  the  administration  of 
the  national  municipal  law  can  be  intrusted  to  persons  who  are 
not  judges  of  courts,  holding  office  with  the  constitutional  quali- 
fication. 

'  Brightly's  Digest,  p.  124-126.  See  note  on  the  opposite  page. 


506  OF   MINISTERIAL   OFFICERS. 

This  inquiry  is  distinct  from  that  question  of  the  application, 
by  State  judicial  officers,  of  the  national  municipal  law  which 
has  already  been  considered. 

§  463.  In  every  state  wherein  the  three  fimctions  of  sov- 
ereignty are  divided  or  separately  invested,  those  who  exercise 
the  executive  and  legislative  functions  have  a  power  of  applpng 
the  existing  law  as  a  coercive  rule  for  private  persons  ;  though  it 
is  herein  supposed  that,  in  a  state  wherein  this  division  of  func- 
tions has  a  constitutional  character  and  the  Government  exists 
under  law,  the  limits  of  the  power  so  exercised  must  be  subor- 
dinate to  the  review  of  those  who  hold  the  judicial  function.' 

In  every  state  wherein  the  administration  of  justice  is  dis- 
tinguished from  the  arbitrary  exercise  of  political  power, '^  the  ex- 
ercise of  the  judicial  function  by  courts  or  judges  has  required 
the  concurrence  of  officers  holding  a  kind  of  power  which,  ac- 
cording to  the  use  of  terms  among  such  states,  is  rather  admin- 
istrative or  ministerial  in  its  nature  than  judicial ;  though  aux- 
iliary or  ancillaiy  to  the  exercise  of  judicial  power  by  others. 
Those  who,  under  the  Grovemment  of  the  United  States,  exer- 
cise a  discretion  thus  ancillary  to  that  of  the  courts,  or  of  the 
judges  holding  the  judicial  power  of  the  United  States,  may, 
undoubtedly,  hold  their  office  otherwise  than  in  the  manner 
prescribed  for  those  judges,  without  any  violation  of  the  Consti- 
tution. Since,  wherever  law  is  applied  under  political  authority 
to  determine  the  action  of  private  persons,  there  is  a  greater  or 
less  exercise  of  judgment  on  the  part  of  some  one  invested  with 
public  authority,  it  is  not  always  easy  to  distinguish  the  ad- 
ministrative from  the  judicial  jiower,  or  this  latter  from  that 
ancillary  ministerial  power  which  is  connected  with  it.  It  is  a 
question  of  public  law,  and  the  line  of  separation  will  be  differ- 
ently placed  in  states  having  different  political  constitutions.^ 
The  rule  of  discrimination  under  the  American  Constitution 
must  be  found  in  the  usages  of  states  wherein  the  functions  of 

*  Ante,  437.    But  see  lessee  of  Livingston  v.  Moore,  7  Peters,  546-549,  and  p.  668, 
in  Appendix ;  2  Brockenborough's  R.  479,  480. 
'  Ante,  §  363. 
'  On  this  subject  see  Bowyer's  Universal  Public  Law,  eh.  xxv. 


WHAT    IS   JUDICIAL    ACT.  507 

sovereignty  are  divided,  and  especially  in  the  antecedent  usages 
of  England,  where  they  have  the  character  of  common  law. 

§  464.  An  ordinary  definition  of  the  term  judicial,  is  given 
by  connecting  it  with  the  existence  of  some  judge  or  court ;  a 
judicial  act  is  said  to  be  one  exercised  or  performed  by  a  judge 
or  court.  But  the  question  here  being  whether  the  act  to  be 
performed  under  the  authority  of  the  United  States  is  that  ju- 
dicial power  of  the  United  States  which  may  be  vested  only  in 
a  court  whose  judges  hold  office  in  accordance  with  the  consti- 
tutional requirement,  the  term  judicial  must  be  defined  with- 
out reference  to  the  public  character  or  quality  of  the  person 
performing  the  act  jC  for  his  capacity  is  to  be  determined  by  the 
mtrinsic  nature  of  the  act,  not  the  nature  of  the  act  by  the 
quality  of  the  person.^  A  judicial  act  must,  from  the  nature  of 
law,  be  one  in  which  the  coercive  authority  of  the  law  is  made 
manifest — not  in  the  original  creation  of  rights  and  obhgations 
between  private  persons,  but  in  giving  them  real  force  by  ancil- 
lary rights  or  legal  remedies.  It  is  an  act  of  judgment  or  deci- 
sion having  reference  to  the  elements  oi  jurisdiction — a  coercive 
superior,  and  a  certain  geographical  territory  and  its  inhabitants.'^ 
Not  every  act  done  by  a  public  officer  in  reference  to  the  ex- 
istence of  a  law  is  a  judicial  act,  or  judgment ;  otherwise  the 
whole  mechanism  of  a  republican  or  constitutional  Government^ 
might  be  called  judicial.  In  interpreting  the  Constitution,  as 
before  shown,  the  previous  juridical  use  of  words  by  the  pos- 
sessors of  sovereign  power  who  established  the  Constitution  must 
be  referred  to  ;  and,  as  used  by  them  in  the  technical  language 
of  English  common  law,  a  judgment  or  judicial  act  not  only  im- 
plies a  law  and  persons  to  be  affected  by  it,  but  a  suspension  or 
determination  of  that  ordinary  choice  of  action  which  those  jier- 
sons  might  have  had  in  relation  to  it,*  and  a  coercive  per- 
formance or  allowance,  in  reference  to  some  limited  territorial 


'  3  Bl.  Comm.  23.  "  A  court  is  defined  to  be  a  place  where  justice  is  judicially 
administered:"  noting  Co.  Litt.  58.  Here  the  meaning  oi  judicially  must  be  ascer- 
tained as  preliminary  to  that  of  court  or  judge. 

""  Ante,  §  2G.  a  j^^/g^  gg  357-364. 

*  That  is,  to  exercise  the  natural  power  of  choice  and  action  before  the  law  has 
been  applied  as  a  coercive  rule,  ante,  §  2. 


508  ADMINISTRATIVE   LAW. 

jurisdiction,  of  that  action  the  right  to  which  had  been  contro- 
verted ;  so  that  the  relation  in  which  that  right  is  a  constituent 
part  is  actually  estahhshed  in  and  for  a  certain  forum  or  juris- 
diction ;  this  determination,  decision,  or  judgment  being  there- 
after supported  by  the  power  of  the  state,  as  its  expressed  will 
in  reference  to  the  persons  and  things  involved  in  that  relation. 

§  465.  In  the  judiciary  department  of  the  Government  of 
the  United  States  a  number  of  ofiScers  are  included  whose  du- 
ties are  not  judicial,  though  they  involve  the  application  of  law 
to  a  certain  condition  of  persons  and  tilings.  Such,  without 
question,  is  the  action  of  the  clerks  of  the  courts,  and  of  the 
United  States  Commissioners  and  State  justices  of  the  peace, 
under  the  earlier  statutes  defining  their  powers.^  Their  office 
is  ministerial,  and  subordinate  to  the  duties  of  the  judges  of  the 
several  courts.  In  the  exercise  of  their  ordinary  power  they  do 
not  determine  or  enforce  a  legal  relation,  with  its  rights  and  ob- 
ligations, in  reference  to  a  definite  jurisdiction,  as  above  de- 
scribed ;  but  only  certain  temporary  relations  or  remedial  rights, 
ancillary  to  the  action  of  the  judges  of  the  courts  in  their  exer- 
cise of  judicial  power. ^ 

§  466.  This  interpretation  of  the  term  Judicial  poive7',  in  the 
Constitution,  must  also  be  made  with  reference  to  distinctions 
in  the  nature  of  laws  resting  on  the  authority  of  the  United 
States.  For  as  there  are  ministerial  or  executive  officers  in 
every  state,  altogether  distinct  from  its  judiciary,  there  is  a 

'  For  the  various  Acts  respecting  their  powers  and  duties,  see  titles  Commissioners 
and  Justices  of  the  Peace,  iu  Brightly's  Digest, 

The  opinion  prevails  with  the  pubhc  and  the  legal  profession  that  the  action  of  the 
U.  S.  Commissioners  in  executing  the  provisions  of  the  fugitive  slave  law  of  1850,  has 
been  determined  not  to  be  an  exercise  of  the  jtidkial  power  of  the  U.  S.,  by  an  over- 
whelming weight  of  judicial  decision.  The  question  whether  such  action  is  or  is  not 
an  exercise  of  the  judicial  function,  is  to  be  considered  in  a  later  portion  of  this  treatise. 
But  it  may  here  be  observed  with  reference  to  the  existence  of  judicial  opinion  sup- 
porting the  negative,  (and  without  questioning  the  existence  of  judicial  authority  af- 
firming the  constitution  ah  ty  of  that  statute  in  other  respects,)  that  it  appears  to  rest, 
almost  entirely,  upon  the  correctness  of  that  view  of  the  opinion  of  the  Supreme  Court, 
in  Trigg's  case,  as  to  the  power  of  State  magistrates  under  the  law  of  1793,  which  was 
taken  by  Chief  Justice  Shaw  and  Mr.  Justice  Nelson,  as  has  been  already  noted. 
Ante,  p.  501,  note. 

*  See  the  older  cases  of  Almeida  and  Rhodes,  in  12  Niles'  Weekly  Register :  ex 
parte  Poole,  &c.,  Nat.  Intell.  Nov.  10,  Dec.  11,  1821,  cited  in  Sergeant's  Const.  Law, 
1st  ed.  p.  274 


APPLIED    INTERNATIONAL    LAW.  509 

particular  personal  law  for  the  regulation  of  such  ministerial  in- 
struments of  the  state  ;  the  administration  of  which  is  distinct 
from  that  of  the  ordinary  territorial  law.  Thus  there  is  a  rule 
of  action  for  those  by  whom  the  ordinary  operation  and  admin- 
istration of  the  Government  is  continuously  maintained.  ^  And 
it  appears  that  the  power  of  pronouncing  judgment  under  the 
military  and  naval  laws  of  the  United  States  is  not  that  judicial 
power  of  the  United  States  which  is  referred  to  in  the  third  Ar- 
ticle of  the  Constitution.  For  although  judicial  in  its  nature, 
and  performed  under  the  authority  of  the  United  States,  it  has 
been  by  the  constant  usage  of  all  nations  exceptional  to  the  civil 
administration  of  justice  ;  though,  in  England  and  America, 
subordinate  to  it  where  the  rights  of  persons  under  civil  laws, 
as  distinguished  from  military,  are  concerned. - 

§  467.  So  there  is  an  important  class  of  legal  relations  (i.  e., 
relations  composed  of  legal  rights  and  obhgations)  which  arise  out 
of  that  international  law  which  has  more  of  the  character  of  pubHc 
than  of  private  law,  and  which,  as  such,  may  be  distinguished 
from  the  ordinary  positive  or  municipal  law.  From  the  exterior 
character  of  this  law,  that  is,  from  the  fact  that  it  must  operate 
in  places  not  included  witliin  the  territorial  forum  of  ordinary  ju- 
dicial tribunals,  the  rights  and  obligations  incident  to  these  rela- 
tions must  be  coercively  maintained  by  the  executive  or  admin- 
istrative function  of  the  Government,  acting  independently  of 
the  judicial  function,  in  a  greater  or  less  degree  ;  a  degree  deter- 
mined partly  by  the  general  rules  observed  by  civilized  states 
in  reference  to  such  objects  of  human  interest  and  action  as 
cannot,  from  their  nature,  be  distinctly  divided  among  and  in- 
cluded under  the  limits  of  different  states,^  and  partly  by  na- 
tional customary  law  derived  from  the  action  of  the  predecessors 
of  the  existing  Government  in  similar   circumstances  ;    each 

'  In  the  French,  Droit  gouvememental ;  German,  Regierungs  Recht,  including  police 
law  and  the  laws  of  financial  economy,  Droit  financier,  cameral  und  Finanzrecht,  jus 
camerale;  see  Falck's  Juristiche  EncycL  §§  41-44.  And,  in  popular  or  republican 
governments,  those  rules  by  which  the  existence,  continuance,  and  action  of  legislative 
bodies  are  determined.     See  Cushing's  Law  of  Legislative  Assemblies,  Introduction. 

^  See  1  Kenf  8  Comm.  341,  note ;  U.  S.  v.  Mackenzie,  Judge  Betts'  decision,  U.  S. 
District  Court,  in  1  New  York  Legal  Observer,  371. 

'  Ante,  §  10. 


510  APPLIED   INTERNATIONAL   LAW. 

nation  having  in  this  respect  a  peculiar  law/  a  jus  proprium, 
differing  more  or  less  from  that  of  other  nations,  according  to 
the  greater  or  less  degree  in  which  it  may  be  historically  con- 
nected with  them,  or  in  which  it  may  have  with  them  a  com- 
munity of  origin  and  language,  and  a  political  affinity. '^ 

'  Though  always  supposed  to  conform  to  a  general  law  prevailing  among  all  na- 
tions, public  inteniational  law,  the  "  law  of  nations"  in  tliat  sense ;  and  by  English 
and  American  jurists  it  is  rarely  distinguished  by  any  other  name.  Compare  ante, 
p.  88,  note.  By  the  French  \\Titers  it  is  designated  droit  gouvememenUd  exterieur  ,•  by 
the  Germans,  dusseres  Regiemngsrecht,  or  dusserea  Staatsrecht ;  Falck's  Jurist.  Ency. 
§§  45,  135. 

*  Thus,  whether  an  administrative  Government  (not  identical  with  the  ultimate 
possessor  of  sovereign  power)  may  or  may  not  at  its  discretion  dehver,  to  the  custody 
of  foreign  states,  persons  who  are  demanded  as  obnoxious  to  the  punitory  law  of  such 
states ;  or,  if  it  may  so  surrender  such  persons,  whether  the  act  requires  the  co-oper- 
ation of  two  or  more  of  the  three  functions  of  power,  when  separately  invested,  are 
questions  not  determinable  by  public  international  law  alone,  simply  as  a  general  rule 
among  nations,  but  depend  very  much  on  the  internal  public  law  of  the  state  and  of 
its  form  of  government ;  which,  therefore,  must  always  be  taken  into  accotmt  in  the 
application  of  an  international  treaty  for  such  extradition  or  rendition. 

Falck's  Jurist.  Encycl.  §  135,  Fr.  ed.  "  On  distingue  avec  raison,  du  droit  des 
gens  positif  de  chaque  etat  particulier,  le  droit  des  gens  positif  universel,  attendu  qu'on 
peut  apercevoir,  au  moins  entre  les  peuples  qui  entretiennent  ensemble  beaucoup  de 
relations,  vm  accord  sur  les  regies  de  droit  positif  aux-quelles  ils  conferment  leurs  ac- 
tions et  d'apres  lesquelles  ils  vculent  qu'elles  soient  jugees." 


CHAPTER  XVI. 

THE  LOCAL  MUNICIPAL  LAWS  OF  THE  UNITED  STATES,  AF- 
FECTING CONDITIONS  OF  FREEDOM  AND  ITS  CONTRARIES, 
CONSIDERED  IN  CONNECTION  WITH  PRINCIPLES  OF  PUBLIC  AND 
PRIVATE  LAW  WHICH  HAVE  BEEN  STATED  IN  PREVIOUS  CHAP- 
TERS. 

§  468.  Reference  has  already  been  made,  in  the  eleventh 
chapter/  to  the  fact  that  at  the  date  of  the  Revolution  the 
geographical  hmits  of  the  original  colonies  were  not  definitively 
settled.  The  present  limits  of  the  older  thirteen  States  and  of 
the  States  Kentucky,  Vermont,  and  Maine,  were  determined  by 
various  agreements  between  the  States,  to  which  it  is  not  ne- 
cessary to  refer  more  particularly,  and  by  the  cession  or  grant 
of  portions  of  the  territory  claimed  by  them,  or  by  some  of  them, 
to  the  Confederation  or  to  the  United  States  in  their  national 
or  federal  capacity.  These  older  States  will  herein  be  taken  to 
have  had  their  present  boundaries  from  the  period  of  the  sepa- 
ration of  the  colonies  from  the  British  empire.  The  effect  of 
the  different  cessions  of  territory  made  by  some  of  those  States 
to  the  United  States,  in  determining  the  existence  of  local  laws 
in  and  for  certain  limits,  will  be  considered  in  the  history  of  the 
laws  of  the  Territorial  jurisdictions  and  new  States  afterwards 
formed  in  the  territory  ceded. 

§  469.  It  has  already  been  shown  that  the  people,  who  (under 
the  name  of  "  the  people  of  the  United  States"  in  the  preamble 
to  the  Constitution)  appear  as  the  constituting  and  delegating 

-  ArOe,  %  347. 


512  THE  PEOPLE  OF  THE  STATES. 

person,  and  the  people  who,  in  the  tenth  Article  of  the  Amend- 
ments, are  declared  to  be,  in  the  alternative  with  the  States,  the 
possessor,  by  reservation,  of  the  powers  not  granted  to  the  na- 
tional Government,  are  of  necessity  to  be  recognized  as  already 
existing  in  the  form,  organization,  and  political  personality  of 
the  people  of  "  several  KStates,"  although  having,  antecedently 
to  the  Constitution,  a  national  organization  and  integral  political 
personality.     The  existence  of  the  political  people  of  each  sev- 
eral State  is,  therefore,  not  a  result  of  the  Constitution,  (as  of  a 
law  in  the  primary  sense,)  but  only  a  fact  proved  or  asserted  by 
it,  (as  by  a  law  in  the  secondary  meaning  of  the  term.) '     And, 
in  accordance  with  the  view  which  is  herein  before  taken  of 
the  nature  of  the  Constitution  of  the  United  States  and  of  the 
meaning  of  the  term  law  when  spoken  of  as  determining  the 
actual  investiture  of  sovereignty,  the  supreme  and  independent 
powers  which,  according  to  that  Constitution,  are  vested  in  the 
several  States  or  the  several  political  people  of  those  States  are 
not  taken  to  be  held  by  such  States  or  people  under  a  law  in 
the  strict  sense  contained  in  the  Constitution  ;  but  that  pos- 
session must  be  considered  antecedent  to  law,  in  the  sense  of  a 
rule,   and  co-ordinate  vdth  the  possession  of  other  sovereign 
powers  by  the  same  States,  or  the  people  of  the  same  States, 
united.     The  Constitution,  in  determining  this  relation  also, 
being  a  law  in  the  secondary  sense  only,  the  statement  or  evi- 
dence of  an  existing  fact.     Though  in  reference  to  persons  who 
are  the  instruments  or  the  subjects  of  that  power,  it  has  the 
effect  of  law  in  the  primary  sense,  or  of  a  rule  of  action. 

§  470.  As,  therefore,  the  possession  by  the  united  people  of 
those  powers  which  in  the  Constitution  are  granted  to  the  na- 
tional Government  is  a  fact  underlying  the  national  municipal 
law,  it  is  in  like  manner  the  first  or  basal  principle  of  the  local 
law  of  each  of  the  several  States  of  the  Union  that  the  peojile 
thereof,  as  a  political  personality,  pre-existent  to  the  State  Gov- 
ernment or  the  organized  instrument  of  that  sovereignty,  are 
the  actual  continuing  and  original  possessors  of  that  separate 
share  of  sovereignty  spoken  of  in  the  Constitution  of  the  United 

'  Ante,  §§  330-346. 


POLITICAL   PEOPLE   OF   THE    STATES.  513 

States  <as  being  "  reserved  to  the  States  or  to  the  people."  As 
the  political  existence  of  the  people  of  each  State  is  not  caused 
by  the  Constitution  of  the  United  States,  neither  is  the  ijosses- 
sion  of  those  powers  by  that  people  an  effect  of  the  same  ; 
neither  fact  being  established  by  it  for  the  future  ;  unless  the 
guarantee  for  a  republican  government^  has  the  effect  of  secur- 
ing such  a  popular  or  public  (natio^ial),  as  opposed  to  private,'' 
investiture  of  the  political  sovereignty  to  be  exercised  severally  in 
such  State  over  persons  and  things  therein, 

§  471,  Although  the  fact  of  the  possession  of  this  share  of 
powers  by  the  several  people  of  one  of  the  States  is  thus  a  fact 
antecedent  to  the  recognition  of  the  positive  law  of  that  State, 
its  local  municipaP  law,  yet  the  mode  in  which  individual  in- 
habitants are  to  participate  in  that  sovereignty  and  be  indi- 
vidual members  of  the  political  people,  (which  is  political  lib- 
erty considered  as  the  right  of  private  persons,  according  to 
previous  definition,^)  is  the  consequence  of  a  rule  of  action  made 
positive  law  by  the  will  of  that  political  integer,  the  political 
people  of  the  State.  Which  law  is  private  law,  in  respect  to 
its  effect  upon  natural  persons,  though  public  law  in  its  relation 
to  the  existence  of  the  State. 

§  472.  In  each  State  of  the  Union,  on  the  assumption  of 
political  sovereignty  by  the  confederated  colonies  in  the  Kevo- 
lution,  the  laws  determining  the  actual  constitution  or  compo- 
sition of  the  political  people  of  the  colony  continued,  by  the 
very  fact  of  the  assumj)tion  of  indej)endent  supreme  power  by 
the  people  of  the  United  States,  and  were  established  in  the 
successful  maintenance  of  that  assumption,^ 

'  Ante,  §  424.  «  AtUe,  §  354  and  note. 

*  ilunicipal  law  of  the  State,  meaning  that  law  which  is  both  internal  and  inter- 
national in  personal  extent,  and  which,  in  its  kind,  is  more  properly  called  national,  as 
derived  from  the  exercise  of  independent  sovereign  power  such  as  belongs  to  states  or 
nations,  ante,  §  9.  But,  to  avoid  confounding  it  with  that  law  which  is  herein  called 
national  from  its  origin  in  the  will  of  the  United  States  as  an  integral  nation  or  state, 
the  word  municipal  is  here  used  for  the  Slate  law.     Compare  ante,  p.  222,  note. 

*  Ante,  §  352. 

*  Ante,  g§  335-346.  The  people  of  the  U,  S,  are  primarily  known  as  the  people 
of  the  several  States  [ante,  §  343).  If,  therefore,  the  doctrine  of  the  social  compact 
has  ever  been  realized  in  the  political  history  of  this  country,  it  must  have  been  in  the 
existence  of  some  several  State  or  States.  But  neither  the  history  of  the  States  nor 
that  of  the  Union  exhibits  any  illustration  of  the  compact  which  might  not,  with  equal 

33 


514  BASIS   OF    STATE    GOVERNMENTS. 

§  473.  The  law  of  political  rights,  or  of  the  political  liberty 
of  private  persons,  is  the  fundamental  law  of  any  state  wherein 
sovereignty  is  a  public  or  2)opular  (national)  right,  as  contrasted 
with  private  right,  and  the  essential  fact  of  its  constitution, 
whether  written  or  unwritten.'  In  the  several  States  of  the 
Union  this  law,  of  the  possession  of  political  liberty  by  private 
persons,  has  been  determined  by  the  same  acts  by  which  Gov- 
ernments, distinct  from  and  subordinate  to  the  political  people 
of  such  State,  have  been  founded,  formed,  or  constituted.  And, 
from  the  mode  of  existence  of  that  "  people  of  the  United 
States/'  which  established  the  national  Constitution,  the  pos- 
session of  political  liberty  by  private  persons  is,  in  reference  to 
the  sovereign  powers  which  are,  in  each  State,  held  by  that 
people  with  national  extent  or  for  the  purposes  of  their  national 
(federal)  existence,  determined  by  the  same  acts.  In  other 
words,  the  laws,  which  in  the  several  States  determine  the  in- 
dividuals composing  the  political  people  of  each  State,  determine 
also  the  composition  of  the  political  people  of  the  United  States 
acting  as  one,  or  so  far  as  they  are  one  people  or  integral  body. 

§  474.  In  all  the  existing  States  of  the  American  Union  the 
political  people  of  each  have  founded  Governments  for  the  ad- 
ministration of  their  share  of  sovereign  powers,  delegating  to 
those  Governments,  with  limitations,  the  powers  of  the  State  or 


propriety,  be  called  a  usurpation  (ante,  p.  120,  note  2).  Using  the  metaphysical  dis- 
tinction between  an  idea  of  the  reason  and  a  conception  of  the  understanding,  it  may 
be  said :  "  Reflect  on  an  original  social  contract,  as  an  event  or  historical  fact,  and  its 
gross  improbability,  not  to  say  impossibility,  will  stare  you  in  the  face.  But  an  ever 
originating  social  contract  as  an  idea,  which  exists  and  works  continually  and  effica- 
ciously in  the  moral  being  of  every  free  citizen,  though  in  the  greater  number  uncon- 
sciously, or  with  a  dim  and  confused  consciousness,  —  what  a  power  it  is!"  Coleridge's 
Literary  Remains,  vol.  iii.  p.  34r,  in  note  to  the  following  from  Hooker's  Ecclesiastical 
Polity,  c.  X.  8,  p.  308:  "  Of  this  point,  therefore,  we  are  to  note,  that  sith  men  natu- 
rally have  no  free  and  perfect  power  to  command  whole  politic  multitudes  of  men, 
therefore  utterly  without  our  consent  we  could  in  such  sort  be  at  no  man's  command- 
ment living.  And  to  be  commanded  we  do  consent,  when  that  society  whereof  we  are 
part,  hath  at  any  time  before  consented,  witliout  revoking  the  same  after  by  the  like 
universal  agreement.  Wherefore,  as  any  man's  deed  past  is  good  as  long  as  himself 
contiuueth,  so  the  act  of  a  public  society  of  men  done  five  hundred  years  sithence 
standeth  as  theirs  who  presentlj'  are  of  the  same  societies,  because  corporations  are 
immortal ;  we  were  then  alive  in  our  predecessors,  and  they  in  their  successors  do  live 
still.  Laws  therefore  human,  of  what  kind  soever,  are  available  by  consent."  And  see 
Coleridge  On  the  CoiistUiUion  of  the  Church  and  State  according  to  the  Idea  of  each,  oh.  i. 
'  Ante,  §.  355. 


LIBERTY    UNDER   STATE    GOVERNMENTS.  515 

people  ;  the  limitation  of  the  power  of  the  Government  being 
made  in  written  Constitutions,  both  by  absolute  reservations  of 
power  and  by  prescribing  forms,  in  which  only  the  powers 
o-ranted  shall  be  exercised.  The  Constitutions  of  the  several 
States,  like  that  of  the  United  States,  are  evidence  of  the  fact 
that  the  people  of  those  States  hold  the  supreme  power,  and  hav€ 
the  same  character  of  public  and  private  law  (in  the  primary 
sense  of  a  rule)  determining  the  political  liberties  of  private 
persons,  because  they  have  rights  secured  to  them  thereby  as 
individual  members  of  the  integral  body-politic. ' 

§  475.  The  modal  existence  of  the  sovereignty  of  a  state 
and  the  form  of  its  instrumental  government  being,  essentially, 
its  constitution,  and  these  State  Governments  being  founded 
on  the  political  rights  of  individuals,  who,  as  natural  persons, 
are  also  subject  to  the  Government  of  the  State,  these  Govern- 
ments are  repuhlican,  according  to  the  definition  before  given.* 
Although  the  meaning  of  the  term  in  the  Constitution  of  the 
United  States  has  never  been  judicially  determined,  yet,  since 
no  appeal  has  hitherto  been  made  to  the  Government  of  the 
United  States,  under  that  guarantee,  from  any  quarter,  ^  it  is 
to  be  presumed  that  all  the  State  Governments  have  a  repub- 
lican form. 

§  476.  There  being  then  in  all  the  States  a  law,  proceeding 
from  the  ultimately  sovereign  people,  establishing  a  Government 
distinct  from  and  subordinate  to  that  sovereign,  that  freedom  of 
action  which  has  herein  before  been  called  social  or  civil  liberty 
may  also  have,  in  the  local  law  of  each  State,  a  constitutional 
basis  ;  or,  by  being  acknowledged,  or  established  by  the  author- 
ity which  constitutes  the  Government,  may  be  independent  of 
the  power  held  by  the  latter. 

§  477.  When  the  powers  held  by  the  national  Government 

'^n?e,  §359.  »  ^n/e,  §§  355-357. 

'  Tliat  is,  no  direct  appeal  to  the  admiuistration.  There  are  maiiy  publications  by 
private  persons,  singly  or  associated,  appealing  to  public  sentiment,  in  which  it  is  held 
that  the  holding  of  slaves  is  now  illegal  in  every  one  of  the  States,  because  contrary 
to  national  law  contained  in  this  and  other  provisions  of  the  Constitution ;  see  the  Un- 
constitutionality of  Slaver}',  by  Lysander  Spooner,  p.  105;  Abolition  Docunaents,No.  2, 
containing  a  speech  in  House  of  Rep.  April  4,  185G,  by  Mr.  Granger,  of  ^ew  York, 
among  many  other  publications  of  "  anti-slaverj-"  associations. 


516  EXTENT   OF    THE    STATE    POWER. 

and  those  possessed  by  the  several  States,  or  by  the  people  of 
each  respectively,  are  to  be  discriminated  in  reference  to  their 
possible  effect  upon  civil  liberty,  there  is  this  very  important 
difference  between  them,  that  the  powers  of  the  first  are  ascer- 
tained by  their  being  distinctly  and  separately  enumerated  in 
the  Constitution  of  the  United  States,  and  its  allotted  share  of 
supreme  powers  consists  only  in  those  specified  and  such  as  are 
necessarily  concomitant  in  order  to  render  them  operative. 
These  powers,  therefore,  being  granted  in  words  having  a  pre- 
cise and  ascertained  legal  meaning,  their  boundaries  may  be 
defined  with  some  degree  of  certainty.  But  the  powers  which, 
according  to  the  evidence  of  the  same  instrument,  are  vested  in 
the  States  or  the  people  of  the  States  severally,  are  described 
by  way  of  residue,  or  reservation  ;  or,  as  being  all  sovereign  state 
power  not  granted  to  the  national  Government  nor  prohibited 
to  the  States. 

§  478.  li;  was  herein  before  considered  a  necessary  judicial 
doctrine  and  the  first  principle  of  positive  law,  (the  subject  of 
jurisprudence,)  that  sovereign  power  may  always  ordain  that  to 
be  law  which  it  has  the  physical  force  to  make  a  coercive  rule.' 

'  Ante,  §  15.  Since  the  distribution  of  the  snm  of  powers  (inherent  in  ci\nl  society 
and  separately  held  by  each  independent  nation  or  state)  which  are  to  be  exercised  in 
each  State  of  the  Union,  is  known  by  the  delegation  of  specified  powers  to  the  national 
Government,  the  proposition  in  the  text  is  more  immediately  connected  v,-\t\\  the 
local  municipal  laws  than  with  the  national  municipal  law  of  the  U.  S.  It  is  here  as- 
sumed as  axiomatic  ;  no  other  proof  being  attempted  than  that  offered  in  the  first 
chapter,  so  far  as  that  may  show  its  harmony  with  other  principles  of  general  juris- 
prudence. That  there  arc  many  persons  occupying  distinguished  social  and  political 
positions  in  this  country,  who  hold  that  a  condition  of  slavery,  whether  chattel  slavery 
or  the  involuntary  servitude  of  a  legal  person,  is  not,  cannot  be,  and  never  has  been 
lawful  or  legal,  is  not  disputed.  But  they  do  not,  for  that  reason  alone,  constitute  ju- 
ridical authority,  nor  are  they  juristical  authority,  if  the  doctrine  advocated  involves 
a  denial  of  the  fundamental  principle  of  all  positive  law.  It  will  not  be  attempted  to 
select,  from  the  writings  of  such  persons,  any  as  being  of  more  authority  than  others. 
But  among  them  Mr.  (Senator)  Seward's  will  be  allowed  a  distinguished  position ;  and, 
in  illustration  of  such  opinions,  reference  may  be  made  to  his  Works,  particularly 
vol.  i.  pp.  66,  71,  80,  312,  494,  514.  Such  assertions  may  be  perfectly  unanswerable, 
because  they  are  stated  as  a  priori  principles  requiring  no  proof;  or,  the  only  proof  is 
founded  on  an  assumption  that  the  author's  idea  of  right  is  the  state's  conception  of  a 
jural  nile,  regula  juris.  In  this  respect  they  are  neither  better  nor  worse  than  propo- 
sitions diametrically  contradictory,  such  as  are  sometimes  put  forth  by  defenders  of 
negro  slavery.  Compare  the  writings  of  Chancellor  Harper,  Governor  Hammond, 
Dr.  Sims,  and  Professor  Dew,  in  a  publication  entitled,  The  Pro-slavery  Argument, 
12mo.  Phila.  1856.  These  writers  have  rather  the  better,  in  this  at  least,  that  they 
do  in  some  degree  recognize  a  standard  of  right  derived  a  posteriori,  and  independent 
of  their  individaal  moral  judgment,  and  profess  to  find  it  in  the  history  of  civil  societies. 


POWER    OF    STATE    GOVERNMENTS.  517 

But  it  was  also  insisted  that  there  may  be  such  a  recognition 
of  a  moral  rule  for  states  or  nations,  that  it  must  always  be  ju- 
dicially j)resumed  to  be  the  constant  will  of  the  sovereign  power, 
until  positively  repudiated  by  it. ' 

If  it  were  supposed  that  a  constituted  Government  could 
receive  from  the  sovereign  people,  by  grant,  the  whole  of  their 
power  over  each  subject  person  or  thing,  then  the  Government 
might,  as  sovereign,  repudiate  all  former  restrictions  acknow- 
ledged by  the  sovereign  people,  its  creator  and  predecessor. 
But  since  by  the  fundamental  law  (law  in  the  secondary  sense) 
of  each  State  of  the  Union  the  ultimate  sovereignty  of  the  people 
confessedly  subsists  as  fully  as  at  the  time  of  the  original  con- 
stitution of  the  Government,  if  any  abnegations  of  power  pn  the 
part  of  the  people  existed  at  the  time  of  the  creation  of  the 
Government,  they  would  stiU  remain  as  the  expressed  will  of 
the  ultimate  sovereign  and  limit  the  power  of  the  administrative 
instrument. 

Upon  the  supposition  then,  that  in  a  state  wherein  the  su- 
preme power  is  publicly  or  popularly  (nationally)  invested,  the 
organized  Government  may  hold,  by  representation,  all  the 
power,  belonging  to  the  political  sovereign  creating  it,  which  is 
not  necessarily  withheld  by  the  fact  of  its  subordinate  existence, 
it  is  first  of  all  important,  for  ascertaining  the  power  of  the  sev- 
eral State  Governments  to  affect  civil  liberty,  to  determine 
whether  there  are  any  principles,  besides  the  law  contained  in 
the  Constitution  of  the  United  States,  which  can  be  taken  to 
be  a  moral  rule  restraining  the  action  of  the  ultimate  sovereignty 
in  any  of  those  States  or  in  the  people  thereof,  and,  therefore, 

Whether  their  induction  is  correct  is  another  question.  In  a  miscellany,  entitled, 
Leisure  Labors,  by  Joseph  B.  Cobb,  Esq.  12mo.  New  York,  1858,  it  is  asserted,  p.  3G0, 
not  only  that  neither  the  national  nor  any  State  Government  can  abolish  slavery  in 
any  local  jurisdiction  of  the  U.  S.,  but  even,  pp.  367,  387,  that  in  Greece  and  Rome  the 
government  could  not  (i.  e.,  had  not  tlie  political  power  to)  "  destroy  the  relation  of 
master  and  slave,  or  deprive  the  first  of  the  labor  and  value  of  the  last." 

From  the  language  of  Mr.  Justice  Catron,  in  Dred  Scott's  case,  19  Howard,  519, 
it  might  be  inferred  that  in  his  view  man  is  properly  described  as  proper/i/,  or  that  under 
the  term  property  men,  as  well  as  other  things,  are  included;  and  that  a  freeman  is 
well  defined  as  «  njara  otcned  hy  himself !  "The  plaintiff  [Scott]  claims  to  have  ac- 
quired property  in  himself,  and  became  free  by  being  kept  in  Illinois  during  two 
years." 

^Ante,  pp.  460,  461. 


518  POWER   OF   STATE   GOVERNMENTS. 

necessarily  binding  on  their  several  subordinate  or  constituted 
Governments. 

§  479.  But  where  any  administrative  Government  subsists 
under  a  form  determined  by  law,  properly  so  called  it  is  evident 
that  it  cannot  itself  wield  the  whole  of  sovereign  state  power, 
one  of  whose  characteristics  is  to  be  exercised  in  any  form  or 
mode  its  possessor  may  choose  to  employ.'  In  each  State  of 
the  Union  there  is  such  a  Government,  acknowledged  to  subsist 
by  the  will  of  the  sovereign  people  thereof,  or  to  be  subject  to 
tbe  public  law  creating  it.  So  far  as  civil  liberty  consists  in 
being  controlled  only  by  known  laws  proceeding  from  rightful 
authority,  it  is  secured  under  each  State  Government,  as  under 
the  Government  of  the  United  States,  by  those  provisions  of  the 
public  law  which  separate  the  functions  of  power  and  prescribe 
the  forms  of  legislation."^ 

§  480.  In  most  of  the  older  fifteen  States  a  written  Consti- 
tution of  Government  replacing  the  former  colonial  public  law, 
and  expressly  founded  on  the  assertion  of  the  existence  of  a  sov- 
ereignty in  the  people  of  the  State,  distinct  from  and  superior 
to  the  powers  exercised  by  the  Government,  was  established 
during  the  revolutionary  period,  or  before  the  establishment  of 
the  existing  Constitution  of  the  United  States.  But  in  two, 
viz.,  Connecticut  and  Rhode  Island,  while  the  people  were  ac- 
knowledged by  the  acts  of  the  local  legislative  body,  as  well  as 
in  the  formation  of  the  national  Constitution,  to  be  the  actual 
possessors  of  sovereignty,  the  form  of  the  local  Government  re- 
mained such  as  it  had  been  under  the  colonial  charters,  until  a 
much  later  period,  there  being  no  specific  acts  of  assumption  of 
sovereignty  by  the  political  people  of  the  former  colony  in  any 
delegation  of  powers  to  newly  constituted  State  Governments. 

In  these  States,  however,  the  popular  investiture  of  local 
sovereignty  had  been  more  distinctly  recognized,  during  the  co- 
lonial period,  than  in  the  other  provinces. 

In  these  States,  therefore,  anterior  to  the  adoption  of  a 
written  State  Constitution,  the  distinction  between  the  power 

*  AnU,  p.  424. 

*  Ante,  §  363.  2  Curtis' Hist.  Cons.  8.  Wynehamer  flr<7«?.  The  People,  3  Keman,  391. 


POWER    OF    STATE    GOVERNMENTS.  519 

of  tlie  State  and  that  of  the  administrative  Government  may 
not  have  been  so  clearly  defined  as  in  others.  The  sejiarate  or 
residuary  powers  of  the  State  or  of  its  people  under  the  national 
(federal)  Constitution  being  held  by  its  administrative  Govern- 
ment very  much  in  the  same  manner  as  the  sovereignty  ofx  the 
British  empire  is  by  parliament ;  or,  at  least,  as  the  local  colo- 
nial sovereignty  claimed  by  the  colonists  had  been  held  by  the 
colonial  Governments  ;'  there  being  no  positive  restriction  of 
the  legislature  other  than  the  anterior  colonial  legislative  de- 
clarations of  rights,  corresponding  to  the  English  Bill  of  Rights 
and  the  Great  Charters.'^  There  was,  therefore,  no  visible  re- 
striction of  the  power  of  the  legislatures  of  those  States,  during 
the  period  referred  to,  more  than  on  that  of  the  ultimately  sov- 
ereign people,  except  such  as  was  found  in  the  nature  of  its 
political  form  or  mode  of  existence  with  the  three  functions  of 
power  separately  invested.^ 

§  481.  But  though  this  might  be  the  strict  view  of  the  then 
existing  constitution,  in  these  instances,  still  it  could  never 
have  been  practically  held  that  the  power  of  the  legislative  body 
was  absolute  over  all  private  rights  and  relations,  even  where 
not  controlled  by  the  political  union  with  the  other  States. 

The  common  law  of  England,  having  a  distinctly  personal 
character  as  the  law  of  iridividual  rights,^  and  the  principles  of 
civil  liberty  proclaimed  in  the  previous  legislative  history  of  the 
colony  had,  practically,  the  force  of  a  written  Constitution  in 
restraining  legislative  discretion,  and  with  greater  distinctness 
than  the  common  law  of  England  in  restraining  parliament.^ 


'  Ante,  §  1.31. 

"  Ante,  ^§  129,  130. 

'  See  the  case  of  Wilkinson  v.  Leland  and  others,  2  Peters,  627,  -where  the  powers 
of  the  legislature  of  Rhode  Island,  there  then  being  no  other  Constitution  tluiu  the 
Colonial  Charter,  were  considered. 

*  Ante,  §  137. 

'  Fletcher  v.  Peck,  6  Cranch,  135  ;  Marshall,  C.  J.,  "  It  may  well  be  doubted 
■whether  the  nature  of  society  and  of  government  does  not  prescribe  some  limits  to  the 
legislative  power."  Calder  v.  Bull,  3  Dallas,  387;  Mr.  Justice  Chase,  "I  cuimot  sub- 
scribe to  the  omnipotence  of  a  State  legidntvre  or  that  it  is  absolute  and  v-'Uhont  control  ; 
although  its  authority  should  not  be  expressly  restrained  by  the  Comtitntion  or  funda- 
mental law  of  the  State.  The  people  of  the  United  States  erected  their  Constitutions  or 
forms  of  government  to  establish  justice,  to  promote  the  general  welfare,  to  secure  the 
blessings  of  liberty,  and  to  protect  their  persons  and  properti/  from  violence.     The  pur- 


520  STATE    CONSTITUTIONS. 

§  482.  In  each  of  tho  several  States  written  Constitutions 
are  now  in  existence,  adopted  by  the  poHtical  people  of  each, 
having  the  eflfect  of  private  as  well  as  of  pubHc  law.  The  scope 
of  legislative  power  in  the  local  Government  is,  therefore,  more 
definitely  determined  than  during  the  colonial  period  ;  though 
its  extent  must  still  he  a  question  in  many  cases,  since  it  is  im- 
possible to  define  it  completely  by  any  written  instrument,  even 
if  such  instniment  should  be  enlarged  to  the  dimensions  of  a 
code.  The  judiciary  of  each  State  in  deciding  upon  the  consti- 
tutional extent  of  the  legislative  power  is  obliged  to  refer,  in  all 
cases,  to  previously  existing  rules,  aflfecting  relations  of  private 
persons,  as  guides  to  the  construction  and  inteqiretation  of  the 

poses  for  which  men  enter  into  society  vnll  determine  the  nature  and  terms  of  the  sorial 
compact ;  and  as  ih/y  are  the  foundation  of  the  kffislative  power  (hey  will  decide  what 
are  the  proper  objects  of  it.  The  nature  and  ends  of  legislative  power  will  limit  the 
exercise  of  it.  This  fundamental  principle  flows  from  the  very  nature  of  our  free  Re- 
publican governments,  that  no  man  should  be  compelled  to  do  what  the  laws  do  not 
require,  nor  to  refrain  from  acts  which  the  laws  permit.  There  are  acts  which  the  Federal 
or  State  legislature  cannot  do  without  exceeding  their  authority.  There  are  certain  vital 
principles  in  our  free  republican  Governments,  which  will  determine  and  overrule  an 
apparent  and  Jlagrant  abuse  of  legislative  power ;  as  to  authorize  man</cst  injustice  by 
positive  law ;  or  to  take  away  that  security  for  personal  liberty  or  private  property,  for 
the  protection  whereof  the  Government  was  established.  But  an  Act  of  the  legislature 
(for  I  cannot  call  it  a  law)  contrary  to  the  great  frst  principles  of  the  social  compact, 
cannot  be  considered  a  righful  exercise  of  legislative  authority.  Tiie  obligation  of  a 
law  in  governments  founded  on  express  compact  and  on  republican- principle's,  must  be 
determined  by  the  nature  of  the  power  on  which  it  is  founded.  A  few  instances,"  <S:c., 
&c.  (Italicised  as  in  Rep.)  See  also  Wilkinson  v.  Leland,  2  Peters,  656;  Dash  r. 
Van  Kleeck,  7  Johnson,  477;  Goshen  v.  Stonington,  4  Conn.  225. 

To  the  contrary  seem  to  be,  Bradde  v.  Bramfield,  2  Watts  and  Serg.  285 ;  Harvey 
V.  Thomas,  10  Watts,  66;  Senator  Verplank  in  Cochran  v.  Van  Surlay,  20  Wendell, 
381.  See  the  opinions  compared  in  E.  Fitch  Smith's  Comm.  ch.  vii.  Wynehamer  v. 
The  People,  3  Kcruan,  391,  Comstock,  J.,  "I  entertain  no  doubt  that,  aside  from  the 
special  limitations  of  the  Constitution,  the  legislature  cannot  exercise  powers  which 
are  in  their  nature  essentially  judicial  or  executive.  These  are  by  the  Constitution 
distributed  to  other  departments  of  the  Government.  It  is  only  the  '  legislative  power' 
which  is  vested  in  the  Senate  and  Assembly.  But  where  the  Constitution  is  silent, 
and  there  is  no  clear  usurpation  of  the  powers  distributed  to  other  departments,  I  think 
there  would  be  great  difficulty  and  great  danger  in  attempting  to  define  the  hmits  of 
this  power.  Chief  Justice  Marshall  said,  (Fletcher  v.  Peck,  supra,)  '  How  far  the 
power  of  giving  the  law  may  involve  every  other  power  in  cases  where  the  Constitution 
is  silent,  never  has  been  and  perhaps  never  can  be  definitely  stated.'  That  very  emi- 
nent judge  felt  the  difficulty ;  but  the  danger  was  less  apparent  then  than  it  is  now, 
when  theories  alleged  to  be  founded  in  natural  reason  or  inalienable  rights,  but  sub- 
versive of  the  just  and  necessary  powers  of  Government,  attract  the  belief  of  consider- 
able classes  of  men,  and  when  too  much  reverence  for  government  and  law  is  certainly 
among  the  least  of  the  perils  to  which  our  institutions  are  exposed.  I  am  reluctant  to 
enter  tipon  this  field  of  inquiiy,  satisfied  as  I  am  that  no  rule  can  be  laid  down  in  terms 
which  may  not  contain  the  germ  of  great  mischief  to  society,  by  giving  to  private 
opinion  and  speculation  a  license  to  oppose  themselves  to  the  just  and  legitimate 
powers  of  Government." 


POWERS   ORIGINAL   IN   THE    STATES.  521 

written  Constitution  itself;  and,  therefore,  in  some  degree,  to 
recognize  another  law  existing  independently  of  the  constituted  le- 
gislature. It  will  always  be  difficult  to  determine  what  portion  of 
the  law  existing  at  any  one  particular  time  is  fundamental  and 
constitutional ;  what  part  is  to  be  regarded  as  fixed  in  the  wiU  of 
the  constituting  authority  and  to  be  judicially  supposed  to  have 
been  taken  by  it  for  a  principle  limiting  all  republican  govern- 
ments. It  is  also  always  necessary  to  discriminate  a  "  natural 
and  necessary  law  of  nations,"  applied  to  the  internal  existence 
of  states.  This,  perhaps,  is  nearly  the  same  as  the  distinction 
of  laws  into  laws  in  the  primary  and  in  the  secondary  senses  ;  ^  a 
law  or  usage  being  considered  to  have  the  character  of  natural 
or  necessary  law  of  nations,  (whether  affecting  private  persons 
or  states,)  where  it  has  always  been  judicially  viewed  as  the 
statement  of  a  mode  of  action  or  a  recognition  of  a  condition  of 
things  ;  as,  for  example,  the  principle  alluded  to  by  Holt,  of  a 
man's  not  being  ever  a  judge  in  his  own  cause.*^ 

Being  private  as  well  as  public  law,  the  various  constitu- 
tional provisions  which  may  affect  freedom  or  its  contraries  in 
the  limited  sense  herein  particularly  considered,  will  be  properly 
comprehended  in  a  historical  summary  of  the  legislation  of  the 
several  States  affecting  this  topic. 

§  483.  It  has  been  herein  before  supposed  that  by  the  Eevo- 
lution  a  certain  national  or  general  authority  became  transferred 
from  the  king  and  ]3arliament  of  England  to  the  integral  people 
of  the  United  States.  This  is  taken  to  be  a  necessary  assump- 
tion from  the  recognition  of  the  present  Constitution  and  the 
events  which  caused  that  recognition.  But  the  same  reasoning 
led  to  the  conclusion  that  whatever  powers  the  present  Consti- 
tution declares  to  be  vested  in  the  several  States,  were  in  fact 
vested  in  them  by  the  Revolution,  or  rendered  by  it  entirely  in- 
dependent and  sovereign,  and  were  not  derived  from  that  Con- 
stitution.^ 

According  to  this  view  there  was  no  longer  a  national  central 
power,  maintaining  within  each  State  the  common  law  of  rights 

■  Ante,  §§  48,  49.  »  Ante,  p.  127.  '  Ante,  %  469. 


522  POWER    OVER   PERSONAL    CONDITION. 

and  privileges  of  persons  of  European  or  Caucasian  race,  as  it 
had  been  sustained  under  the  British  imperial  power  ;  except  as 
it  might  be  sustained  internationally  or  Q-ifasi-internationally 
between  the  States,  operating  as  public  and  private  law.  And, 
if  there  had  been  any  national  law  affecting  the  condition  of 
other  persons  to  whom  the  common  law  of  England  did  not 
apply  as  a  personal  law,  it  also  ceased  to  have  a  national  extent 
on  the  occurrence  of  the  same  events  ;  or  had,  thereafter,  only 
such  effect  as  was  derived  from  the  international  provisions  of 
the  Constitution. 

Hence,  whether  there  would  have  been  a  common  law  in 
each  State  which,  in  the  absence  of  a  State  Constitution,  could 
have  been  judicially  recognized  as  a  check  on  the  legislature, 
would  be,  in  each  State,  before  and  after  the  adoption  of  a  State 
Constitution,  a  question  of  the  same  sort  as  that  of  the  effect 
of  common  law  in  England  against  the  power  of  j^arliament. 

§  484.  But  though  the  common  law  or  every  national  law  of 
the  rights  of  persons  may  have  ceased  to  have  any  continuing  basis 
in  a  national  authority,  it  is  plain  that,  on  the  principle  of  the 
continuous  existence  of  laws,  the  distinction  of  two  races  and  of 
two  personal  laws  applying  to  those  races  would  continue  to  be 
recognized  by  the  judicial  tribunals  of  each  State,  in  the  same 
degree  as  before,  until  changed  by  the  thereafter  several  and 
independent  legislative  power  thereof ;  and  that  the  laws  which 
before  were  received  in  the  State,  as  personal  laws  applying  to 
aliens  and  as  private  international  law,  would  continue  to  be 
recognized  ;  until  changed  by  the  State  for  its  own  limits,  or  by 
the  national  power  held  by  the  general  Government  over  this 
class  of  persons  in  all  the  States. 

§  485.  The  fourth  of  the  Articles  of  the  Confederation  of 
November  17,  1777,  may  have  been  intended  to  secure  in  the 
several  States  some  international  allowance  of  rights  and  obli- 
gations which  had  before  had  a  personal  and  national  extent  in 
all  the  colonies  as  parts  of  the  British  empire.  But  the  effect 
of  this  Article  on  personal  condition  does  not  seem  to  have  ever 
been  made  a  subject  of  judicial  inquiry  during  the  existence  of 
the  Confederation.     The  Article  may  be  thought  to  have  the 


THE   POWER    IN    THE   STATES. 


523 


form  of  private  law,  that  is,  law  which  of  itself  maintains  the 
existence  of  legal  rights  in  private  persons.  But  since  the 
enacting  power  was  not  represented  by  a  general  administrative 
Government,  organized  with  an  investiture  of  the  three  functions 
of  sovereignty  for  the  purpose  of  applying  municipal  (internal) 
law,  the  rights  declared  by  that  Article  had  no  national  guar- 
antee available  for  the  private  persons  by  whom  they  might  have 
been  claimed  ;  and  the  Article  must  have  depended  on  the  several 
juridical  will  of  each  State  for  its  coercive  effect,  having  in  that 
respect  only  the  force  of  a  public  international  compact.  It 
would  appear,  therefore,  that  until  the  formation  of  the  present 
Constitution  of  the  United  States  the  only  restriction  on  the 
legislative  power  of  the  several  States,  in  reference  to  per- 
sons domiciled  in  other  States  of  the  Union,  would  (irrespec- 
tively of  restrictions  in  the  Constitutions  of  these  States  them- 
selves) have  been  these  treaty  provisions  in  the  Articles  of 
Confederation,  and  the  undetermined  force  of  common  law  to 
preserve  itself,  in  its  own  courts,  against  the  action  of  a  legis- 
lating Government. 

§  486.  The  sum  of  all  sovereign  powers  to  affect  private 
persons  in  any  part  of  the  United  States  may,  or  may  not,  have 
been  exercised,  during  the  Kevolutionary  period  or  during  the 
Confederation,  in  a  different  manner,  or  according  to  a  somewhat 
different  distribution  of  those  powers,  from  that  existing  under 
the  present  Constitution.  But,  for  the  present  purpose,  it  is 
enough  to  know  that  the  powers  vested  in  the  Continental  Con- 
gress or  in  the  Congress  of  the  Confederation  were  certainly  not 
greater,  in  any  respect,  than  those  now  vested  in  the  present 
national  Government,  and  did  not,  in  legislation,  act  so  directly 
on  private  persons  within  the  limits  of  the  several  States.  No 
chano-e,  therefore,  could  have  been  made  in  the  status  or  con- 
dition  of  private  persons  within  the  several  States  by  the  na- 
tional legislation  of  the  United  States  anterior  to  the  present 
national  Constitution. 

§  487.  Since  the  provisions  of  the  Constitution  of  the  United 
States  which  create  or  maintain  relations  of  private  persons  do 
not  determine  the  possession  of  individual  rights,  except  inter- 


524  POWER   OVER   PERSONAL    CONDITION. 

nationally  or  quasi-mteniationa\[y,  and  the  powers  of  the  na- 
tional Government  over  persons  and  things  within  the  limits  of 
the  several  States  can  determine  only  certain  relative  rights  nut 
primarily  entering  into  the  relations  of  legal  status  or  condition,' 
the  laws  affecting  individual  rights  and  relations  incident  to 
conditions  of  freedom  or  its  contraries '  within  the  States  must 

'  Ante,  p.  483. 

'  The  expression  "freedom  and  its  opposites,"  has  been  used  repeatedly  in  previous 
chapters.  A  note  in  Coleridge's  Church  and  State,  p.  24,  has  suggested  that  the  term 
contrary  should  have  been  employed  instead  oi ojypoifite.  "Let  me  call  attention  to  the 
essential  difference  between  '  opposite'  and  '  contrary.'  Opposite  powers  are  always  of 
the  same  kind,  and  tend  to  union,  either  by  equipoise  or  by  a  common  product.  Thus 
the  +  and  —  poles  of  the  magnet,  thus  positive  and  negative  electricitj-  are  opposites, 
sweet  .ind  bitter  are  contraries.  The  feminine  character  is  opposed  to  the  masculine ; 
but  the  effeminate  is  its  contrary.  Even  so  in  the  present  instance,  [the  topic  which 
he  here  considers,]  the  interest  of  permanence  is  opposed  to  that  of  progressiveness ; 
but  so  far  from  being  contrary  interests,  they,  like  the  magnetic  forces,  suppose  and 
require  each  other." 

In  some  recent  defences  of  negro  slavery  th^  argument  is  based  on  the  idea  that 
freedom  and  slavery  are  not  contraries,  but  opposites ;  or  that  they  "  suppose  and 
require  each  other."  A  prominent  example  is  found  in  the  speech  of  Senator  Ham- 
mond, of  South  Carolina,  in  the  recent  debates  on  the  Kansas  question,  in  the  U.  S. 
Senate,  March  4,  IS.'JS.  "  In  all  social  systems  there  must  be  a  class  to  do  the  menial 
duties,  to  perform  the  drudgery  of  life.  That  is,  a  class  requiring  but  a  low  order  of 
intellect  and  but  little  skill.  Its  requisites  are  vigor,  docility,  fidelity.  Such  a  class 
you  must  have,  or  you  would  not  have  that  other  class  which  leads  progress,  civiliza- 
tion, and  refinement.  It  constitutes  the  very  mud-sill  of  society  and  of  political  govern- 
ment ;  and  you  might  as  well  attempt  to  build  a  house  in  the  air,  as  to  bviild  either 
the  one  or  the  other,  except  on  this  mud-sill.  Fortunately  for  the  South,  she  foimd  a 
race  adapted  to  that  purpose  to  her  hand.  A  race  inferior  to  her  own,  but  eminently 
qualified  in  temper,  in  vigor,  in  docility,  in  capacity  to  stand  the  climate,  to  answer  all 
her  purposes.  We  use  them  for  our  purpose,  and  call  them  slaves.  We  found  them 
slaves  by  the  '  common  consent  of  mankind,'  which,  according  to  Cicero,  '  lex  naturie 
est,'  the  highest  proof  of  what  is  Nature's  law.  We  are  old-fashioned  at  the  South 
yet ;  it  is  a  word  discarded  now  by  '  ears  polite.'  I  will  not  characterize  that  class  at 
the  North  with  that  term  ;  but  you  have  it ;  it  is  there,  it  is  everywhere,  it  is  eternal. 

"  The  Senator  from  New  York  said,  yesterday,  that  the  whole  world  had  abolished 
slavery.  Aye,  the  name,  but  not  the  thing ;  all  the  powers  of  the  earth  cannot  abolish 
that.  God  only  can  do  it  when  he  repeals  the  Jiat,  '  the  poor  ye  always  have  with 
you ;"  for  the  man  who  lives  by  daily  labor,  and  scarcely  lives  at  that,  and  who  has  to 
put  out  his  labor  in  the  market,  and  take  the  best  he  can  get  for  it ;  in  short,  your 
whole  hireling  class  of  manual  laborers  and  '  operatives,'  as  you  call  them,  are  essen- 
tially slaves.  The  difference  between  us  is,  that  our  slaves  are  hired  for  life  and  well 
compensated ;  there  is  no  starvation,  no  begging,  no  want  of  employment,  among  our 
people,  and  not  too  much  employment  either.  Yours  are  hired  by  the  day,  not  cared 
for,  and  scantily  compensated,  which  may  be  proved  in  the  most  painful  manner,  at 
any  hour,  in  any  street  in  any  of  your  large  towns.  Why,  you  meet  more  beggars  in 
one  day,  in  any  single  street  of  the  city  of  New  York,  than  you  would  meet  in  a  life- 
time in  the  whole  South.  We  do  not  think  that  whites  should  be  slaves  either  by  law 
or  necessity.  Our  slaves  are  black,  of  another  and  inferior  race.  The  status  in  which 
we  have  placed  them  is  an  elevation.  They  are  elevated  from  the  condition  in  which 
God  first  created  them,  by  being  made  our  slaves.  None  of  that  race  on  the  whole 
face  of  the  globe  can  be  compared  with  the  slaves  of  the  South.  They  are  happy, 
content,  unaspiring,  and  utterly  incapable,  from  intellectual  weakness,  ever  to  give  us 
any  trouble  by  their  aspirations.   Yours  are  white,  of  your  own  race ;  you  are  brothers 


CONSTITUTIONAL   RESTRICTIONS.  525 

rest  on  the  exercise  of  the  powers  held  by  the  several  people  of 
each  State  since  the  period  of  the  independent  existence  of  the 
United  States,  subject  only  to  the  international  provisions  of 
the  Constitution,  and  also,  though  in  a  different  sense  of  sub- 
jection, to  that  international  rule  which  is  law  in  an  imperfect 
sense  only  when  states  are  spoken  of  as  its  subjects. 

§  488.  According  to  the  view  herein  before  taken  of  the 
powers  of  the  national  Government  over  the  Territories  of  the 
United  States,  the  District  of  Columbia,  &c..  Congress,  in  the 
exercise  of  the  legislative  power  of  the  United  States,  stands  in 
the  same  relation,  towards  persons  and  things  in  those  several 
jurisdictions,  which  the  several  State  Governments  occupy  in 
reference  to  persons  and  things  within  the  limits  of  their  re- 
spective States,  and  is  controlled  only  by  the  provisions  of  the 
Constitution  operating  as  public  or  as  private  law,  and,  perhaps, 
also  by  a  "  common  law,"  identified  with  the  juridical  will  of  the 
people  of  the  United  States.' 

§  489.  The  question  how  far  any  one  of  the  State  Govern- 
ments, or  the  national  Government  legislating  in  and  for  the 
Territories,  &c.,  has  power  to  determine  the  existence  of  con- 
ditions of  freedom  or  its  contraries  within  one  of  these  several 
jurisdictions,  is  properly  to  be  made  a  separate  question  under 
the  local  law  of  each.  There  is,  however,  an  inquiry  which  may 
be  considered  generally  with  reference  to  all  these  Governments, 
which  is  this  :  it  being  assumed  that  the  legislative  power  held 
by  any  one  such  Government  is  limited  by  co7istitutional  'pro- 
visions having  the  effect  of  private  law ;  or,  in  other  words,  by 
those  provisions  in  the  Constitutions  which,  like  the  English 
bills  of  rights  and  the  colonial  charter  guarantees,  secure  rights 

of  one  blood.  They  are  your  equals  in  natural  endowment  of  intellect,  and  they  feel 
galled  by  their  degradation.  Our  slaves  do  not  vote.  We  give  them  no  political 
power.  Yours  do  vote,  and  being  the  majority,  they  are  the  depositaries  of  all  your 
political  power.  If  they  knew  the  tremendous  secret,  that  the  ballot  box  is  stronger 
than  ''  an  army  with  banners,"  and  could  combine,  where  would  you  be  ?  Your  so- 
ciety would  be  reconstructed,  your  government  overthrown,  your  property  divided,  not 
as  they  have  mistakenly  attempted  to  initiate  such  proceedings  by  meetings  in  parks, 
with  arras  in  their  hands,  but  by  the  quiet  process  of  the  ballot  box.  You  have  been 
making  war  upon  us  to  our  verj'  hearth  stones.  How  would  you  like  for  us  to  send 
lecturers  and  agitators  North,  to  teach  these  people  this,  to  aid  in  combining,  and  to 
lead  them  ?" 

'  Compare  ante,  §  481,  note. 


526  CONSTITUTIONAL   RESTRICTIONS. 

to  private  persons/  and  it  being  also  assumed  that  like  clauses, 
having  like  eflfect,  may  be  found  in  all  these  Constitutions,  in- 
cluding the  Constitution  of  the  United  States,  whether  the 
Grovernments  organized  under  such  Constitutions  are  thereby 
restricted  either  in  establishing,  or  in  abrogating,  conditions 
either  of  freedom  or  of  its  contraries  ;  or  in  their  power  to  es- 
tablish, or  to  abrogate,  relations  incident  to  conditions  of  freedom 
or  of  bondage.*^ 

§  490.  In  this  inquiry  it  is  proper  first  to  refer  to  whatever 
juridical  authority  ^  may  exist  on  this  topic,  and  afterwards  to 

*  That  is,  -written  guarantees,  distinguished  from  that  indefinite  restriction  which 
may  or  may  not  exist  by  reason  of  the  fact  that  the  organized  Government  is  not  the 
ultimate  possessor  of  the  sovereign  powers  exercised  by  it.     Ante,  §  481. 

'  On  the  principle  of  the  continuation  of  laws,  it  has  already  been  insisted  that 
rights  and  obligations,  incident  to  relations  existing  under  previous  laws,  would  con- 
tinue after  the  establishment  of  the  new  Governments,  until  changed  by  their  author- 
ized legislation.  It  is  needless  to  refer  to  judicial  action,  under  both  the  national  and 
the  State  Governments,  maintaining  conditions  of  freedom  and  its  contraries  under  pre- 
existing laws.  Tliese  Constitutions  miglit  however  contain  enacting  provisions  alter- 
ative of  pre-existing  laws.  It  will  be  shown  hereinafter  that  in  Massachusetts  a 
declaration  in  the  Constitution  of  1 780,  that  the  enjoyment  of  "  natural  rights"  is  one 
of  the  ends  of  Government,  and  attributing  to  all  persons  certain  rights,  as  natural, 
which  are  inconsistent  with  a  condition  of  slaverj',  was  taken  by  the  courts  to  be  a 
legislative  abrogation  of  slavery.  See  Parsons,  C.  J.,  in  -t  Mass.  R.  123.  In  other 
States,  whose  Constitutions  contain  declarations  very  similar,  the  same  eflfect  has  never 
been  attributed  to  them.  See  H.  St.  George  Tucker,  President,  in  the  Court  of  Ap- 
peals of  Va.,  in  Betty  et  al.  v.  Horton,  (1833,)  5  Leigh's  R.  G22.  The  question  here 
is  of  the  personal  extent  of  the  law  attributing  rights,  as  described  in  the  second  chapter, 
or  whether  it  has  universal  extent  or  not  (ante,  §§  87,  88).  In  this  connection  it  is  a 
question  of  internal  law,  though  it  is  similar  to  that  distinction  of  laws  of  universal 
extent  which  arises  in  applying  the  rule  of  comity  m  private  international  law. 

But  such  constitutional  provisions  as  guarantee  iudividu.al  rights  as  existing  riguts, 
without  attributing  them  to  all  persons,  more  than  is  done  in  the  clause  "  no  man 
shall  be  deprived  of  life,  Uberty  or  property  without  due  process  of  law,"  have  never 
been  held  to  operate  as  a  legislative  abrogation  of  slavery  or  institution  of  freedom. 

*  This  juridical  authority  may  be  distinguished  into  two  portions ;  1,  judicial  de- 
cisions of  particular  cases,  in  the  determiuatiou  of  which  the  topic  is  supposed  to  be  in- 
volved :  2,  juristical  opinion ;  and  in  tliis  may  be  included  legislative  practice,  as  being 
an  assertion  of  public  law  by  persons  who,  from  their  position,  must  be  supposed  to  be 
conversant  with  the  subject. 

And  it  may  here  be  observed,  that  a  rule  or  principle  of  law  is  never  established 
hy judicial  action  alone.  Tliis  proposition  may  not  be  readily  accepted,  but  it  never- 
theless appears,  from  the  nature  of  the  judicial  function,  that  a  decision  by  a  judicial 
tribunal  binds  private  persons  only  as  to  the  riglits  and  obligations  involved  in  the 
particular  case.  In  every  science  rules  are  derived  hy  induction,  and  to  this,  there 
must  be  a  collation  and  comparison  of  a  number  of  otherwise  unconnected  instances  or 
cages,  corresponding  to  experiments  in  physics.  In  jurisprudence,  general  rules  are 
thus  obtained  by  juristical  action.  In  England  and  America  this  juristical  deduction 
takes  place  principally  in  the  reported  judicial  opinions,  and  hence,  in  these  comitries 
it  is  very  common  to  speak  of  a  rule  as  depending  on  some  decision  of  a  case,  in  which 
this  juristical  action  has  been  exhibited.  In  continental  Europe  the  judges  confine 
themselves  more  to  a  simple  decision  of  the  case  before  them.     But  the  juristical  de- 


AS  TO  STATUS  OF  WHITE  PERSONS.  527 

compare  the  principle,  declared  by  any  such  authority,  with  the 
general  principles  of  jurisprudence  and  those  doctrines  of  public 
law  which  are  received  as  fundamental  in  this  country  ;  taking 
them  in  connection  with,  or  as  they  are  indicated  in,  the  history 
of  free  condition  and  its  contraries,  as  it  has  herein  before  been 
exhibited. 

§  491.  If  the  conditions  of  freedom  and  bondage  are  properly 
described  as  contraries,  the  legislative  establishment  of  the  one 
is  also  the  abrogation  of  the  other. 

There  is  probably  no  judicial  opinion  on  the  question  of  the 
power  of  the  ordinary  legislature,  under  these  Constitutions,  to 
make  free  white  persons  slaves  ;  either  chattel  slaves  or  legal 
persons  held  in  involuntary  servitude  for  life.  It  seems  to  be 
generally  supposed  that  no  instances  have  occurred  of  such  per- 
sons being  reduced  to  such  slavery  under  legislative  enactment. 

But  from  the  summary  of  State  legislation,  to  be  herein- 
after given,'  it  will  appear  that  under  the  statute  law  of  some 
of  the  States,  negroes,  mulattoes  and,  generally,  persons  not  of 
European  or  Caucasian  race,  who  before  enjoyed  personal  liberty, 
might  be  reduced  to  slavery.  And  it  would  appear  that  such 
laws  have  received  judicial  sanction ;  no  question,  it  is  believed, 
having  been  made  of  the  power  of  the  legislature  in  respect  to 
such  persons.2 

§  492.  No  judicial  opinion  earlier  than  that  of  the  Supreme 


duction  is  completed  by  private  writers.  Hence  the  treatises  have  with  them  greater 
authority  than  the  so-called  "elementary  works''  have  with  us.  Compare  the  lan- 
guage of  Ram,  on  Legal  Judgment,  p.  2,  with  that  of  Falck,  Juristiche  Ency.  §  10, 
ante,  p.  25,  n.  2,  p.  26,  n.  2. 

See  also,  on  this  subject,  Bacon's  Aphorisms,  21-31,  in  Advancement  of  Learn. 
B.  8,  c.  3.  Senator  Piatt  (afterwards  Judge  of  the  Supreme  Court)  in  Yates  v.  Lan- 
sing, 9  Johnson,  414,  "  The  decisions  of  Courts  are  not  the  laio,  they  are  only  evidence 
of  the  law.  And  this  evidence  is  stronger  or  weaker  according  to  the  number  and 
uniformity  of  adjudications,  the  union  or  dissension  of  the  Judges,  the  solidity  of  the 
reasons  on  which  the  decisions  are  founded,  and  the  perspicuity  and  precision  with 
which  those  reasons  are  expressed.  The  weight  and  authority  of  judicial  decisions  de- 
pend also  on  the  character  and  temper  of  the  times  in  which  they  are  pronounced. 
An  adjudication  at  a  moment  when  turbulent  passions  or  revolutionary  frenzies  pre- 
vail deserves  much  less  respect  than  if  it  were  made  at  a  season  propitious  to  impartial 
inquiry  and  calm  deliberation." 

'  And  see  Stroud's  Sketch,  2d  ed.  p.  24-30. 

*  Wherticr  under  these  statutes  white  persons  have  not  sometimes  been  reduced  to 
slavery  may  depend  on  the  answer  to  the  question,  bow  is  a  negro,  mulatto,  &c.,  to  be 
distinguished  from  a  person  of  white,  or  European  or  Caucasian  race  ? 

34 


528  SLAVERY    IN    THE    TERRITORIES. 

Court  of  the  United  States,  in  Dred   Scott  v.  Sandford,  19 
Howard,  394,  appears  to  be  on  record  to  the  effect  that,  if  the  po- 
litical power  and  jurisdiction  over  the  Territories,  &c.,  is  vested  in 
the  national  Government,"  Congress  has  not  the  power  to  deter- 
mine whether  slavery  shall  or  shall  not  exist  therein,  or  whether 
a  presently  legal  right  of  owncrf=i]iip,  in  a  domiciled  inhabitant, 
in  respect  to  a  negro  slave  shall  or  shall  not  continue  ;  nor  any 
which  declares  that  such  power  is  one  not  witliin  the  ordinal}' 
scope   of  powers  belonging   to   such   limited  Governments   as 
have  existed  in  and  for  the  United  and  several  States.     Nor  is 
there  any  other  holding  that,  if  by  the  Constitution  of  a  State, 
or  by  that  of  the  United  States  operating  with  like  effect,  the 
right  of  private  property  or  to  private  proi)erty  is  guaranteed 
by  a  declaration  that  no  man  shall  be  deprived  of  his  property 
without  due  process  of  law,  the  right  of  a  person,  being  a  resi- 
dent or  domiciled  inhabitant  or  citizen  of  one  of  these  jurisdic- 
tions, in  respect  to  a  negro  lawfully  held  by  him,  before  and 
presently,  as  a  slave  or  in  involuntary  servitude,  is  a  right  of 
property  or  to  property,  which  under  this  constitutional  guar- 
antee cannot  be  affected  by  tlie  legislative  power  held  by  the 
State  Government,  in  and  for  a  State,  or  by  that  held  by  Con- 
gress in  and  for  a  Territory,  &c.,  as  the  case  may  be. 

§  493.  In  this  case,  however,  it  was  held  by  the  majority  of 
the  court  that  Congress  has  no  power  to  abolish  or  prohibit 
slavery  in  the  Territories  of  the  United  States.'^  And  in  the 
Opinion  of  the  Court,  delivered  by  Chief  Justice  Taney,  it  is 
held  that  the  pro'S'isions  in  the  Constitution,  which  have  already 

'  Whether  the  supreme  governmental  power  or  sovereignty,  or  any  portion  of  it, 
is  severally  or  separately  vested  in  the  inhabitants  of  such  Territory,  so  that  they  are 
in  its  exercise  independent  of  the  national  power  as  are  the  people  of  a  State  in  their 
several  sovereignty,  is  an  entirely  different  question,  one  of  public  law,  and  to  be  con- 
sidered in  another  place.  Compare  ante,  §§  348,  397. 
■  ^  Mr.  Justice  Catron,  10  Howard,  519,  reciting  the  words  of  the  act  of  Congress  of 
1820,  commonly  called  the  Missouri  Compi-omise,  "  That  in  all  that  territory,  ceded 
by  France  to  the  United  States,  which  lies  north  of  thirty-six  degi-ees  thirty  minutes 
north  latitude,  slavery  and  involuntary  servitude  shall  be,  and  are  hereby,  for  ever 
prohibited ;"  says,  "  The  first  question  presented  on  this  act  is  whether  Congress  had 
power  to  make  such  a  compromise.  For  if  power  was  wanting,  then  no  freedom  could 
be  acquired  by  the  defendant  under  the  act."  In  denying  the  power  of  Congress,  con- 
cuiTed  Chief  Justice  Taney,  Justices  Wayne,  Grier,  Daniel,  Campbell  and  Catron. 
Justices  McLean  and  Curtis  dissenting,  and  Mr.  Justice  Nelson  thinking  the  decision 
of  the  question  not  necessary  for  the  determination  of  the  case. 


DRED    SCOTT   V.   SANDFORD.  529 

been  referred  to  as  having  the  effect  of  private  law  throughout 
the  entire  dominion  of  the  United  States,  especially  the  clause 
guaranteeing  to  the  private  citizen  his  possession  of  proijerty, 
"  No  person  shall  he  deprived  of  life,  liberty,  or  property  with- 
out due  process  of  law,"  apply  to  slaves  as  property,  or  that,  in 
reference  to  such  guarantee  they  are  to  be  considered  property, 
in  the  same  degree  as  domestic  animals  and  inanimate  chattels. 
The  passage  in  which  this  is  enunciated,  is  on  page  451  of  the 
report,  and  in  continuation  of  that  part  of  the  Opinion  which 
has  herein  already  been  cited  in  a  note  to  pages  463,  464  : — 

'•  And  if  Congress  itself  cannot  do  this — if  it  is  beyond  the 
powers  conferred  on  the  Federal  Grovernment — it  will  be  ad- 
mitted, we  presume,  that  it  could  not  authorize  a  Territorial 
Government  to  exercise  them.  It  could  confer  no  power  on  any 
local  Government,  established  by  its  authority,  to  violate  the 
provisions  of  the  Constitution. 

"  It  seems,  however,  to  be  supposed,  that  there  is  a  difference 
between  property  in  a  slave  and  other  property,  and  that  dif- 
ferent rules  may  be  applied  to  it  in  expounding  the  Constitution 
of  the  United  States.  And  the  laws  and  usages  of  nations,  and 
the  writings  of  eminent  jurists  upon  the  relation  of  master  and 
slave  and  their  mutual  rights  and  duties,  and  the  powers  which 
Governments  may  exercise  over  it,  have  been  dwelt  upon  in  the 
argument. 

"  But  in  considering  the  question  before  us,  it  must  be 
borne  in  mind  that  there  is  no  law  of  nations  standing  between 
the  people  of  the  United  States  and  their  Government,  and 
interfering  with  their  relation  to  each  other.  The  powers  of 
the  Government,  and  the  rights  of  the  citizen  under  it,  are 
positive  and  practical  regulations  plainly  written  down.  The 
people  of  the  United  States  have  delegated  to  it  certain  enu- 
merated powers,  and  forbidden  it  to  exercise  others.  It  has  no 
power  over  the  person  or  property  of  a  citizen  but  what  the 
citizens  of  the  United  States  have  granted.  And  no  laws  or 
usages  of  other  nations,  or  reasoning  of  statesmen  or  jurists  upon 
the  relations  of  master  and  slave,  can  enlarge  the  powers  of  the 
Government,  or  take  from  the  citizens  the  rights  they  have  re- 


530  OPINION   OF   THE   COURT. 

served.  And  if  the  Constitution  recognizes  the  right  of  property 
of  the  master  in  a  slave,  and  makes  no  distinction  hetween  that 
description  of  property  and  other  property  owned  by  a  citizen, 
no  tribunal,  acting  under  tlio  authority  of  the  United  States, 
whether  it  be  legislative,  executive,  or  judicial,  has  a  right  to 
draw  such  a  distinction,  or  deny  to  it  the  benefit  of  the  pro- 
visions and  guarantees  which  have  been  provided  for  the  protec- 
tion of  private  property  against  the  encroachments  of  the  Gov- 
ernment. 

"  Now,  as  we  have  already  said  in  an  earlier  part  of  this 
opinion,  upon  a  different  point,  the  right  of  property  in  a  slave 
is  distinctly  and  expressly  affirmed  in  the  Constitution.'  The 
right  to  traffic  in  it,  like  an  ordinary  article  of  merchandise  and 
property,  was  guaranteed  to  the  citizens  of  the  United  States, 
in  every  State  that  might  desire  it,  for  twenty  years.  And  the 
Government  in  express  terms  is  pledged  to  protect  it  in  all 
future  time,  if  the  slave  escapes  from  his  owner.  This  is  done 
in  plain  words — too  plain  to  be  misunderstood.  And  no  word 
can  be  found  in  the  Constitution  which  gives  Congress  a  greater 
power  over  slave  property,  or  which  entitles  property  of  that 
kind  to  less  protection  than  property  of  any  other  description. 
The  only  power  conferred  is  the  power  coupled  with  the  duty  of 
guarding  and  jDrotecting  the  owner  in  his  rights. 

"  Upon  these  considerations,  it  is  the  opinion  of  the  court 
that  the  act  of  Congress  which  prohibited  a  citizen  from  holding 
and  owning  property  of  this  kind  in  the  territory  of  the  United 
States  north  of  the  line  therein  mentioned,  is  not  warranted  by 
the  Constitution,  and  is  therefore  void." 

"  Referring  apparently  to  page  425,  -n-here  it  is  said,  in  discussing  the  question, 
whether  a  negro  may  he  a  citizen,  "  The  only  two  provisions  which  point  to  them 
and  include  them,  [the  reference  is  here  to  the  "  African  race,"]  treat  them  as  prop- 
erty, and  make  it  the  duty  of  the  Government  to  protect  it ;  no  other  power,  in  relation 
to  this  race,  is  to  he  found  in  the  Constitution,  and  as  it  is  a  Government  of  special, 
delegated  powers,  no  authority  heyond  these  two  provisions  can  be  constitutionally  ex- 
ercised. The  Government  of  the  United  States  had  no  right  to  interfere  for  any  other 
purpose  but  that  of  protecting  the  rights  of  the  owner,  leaving  it  altogether  with  the 
several  States  to  deal  with  tlus  race,  whether  emancipated  or  not,  as  each  State  may 
think  justice,  humanity,  and  the  interests  and  safety  of  society  may  require.  The 
States  evidently  intended  to  reseiTC  this  power  exclusively  to  themselves."  The  Chief 
Justice  does  not  explain  how,  from  the  fact  that  by  the  Constitution  the  condition  of 
negroes  is  left  to  the  powers  of  the  several  States,  it  may  follow  that  the  chattel  con- 
dition of  a  negro  is  maintained  by  the  law  which  rests  upon  the  national  powers,  and 
has  national  extent. 


DRED    SCOTT   V.    SANDFORD.  531 

§  494.  Mr.  Justice  Wayne  particularly  noticed  only  the 
question  of  pleading,  but  said,  on  page  454  of  the  report,  "  Con- 
curring as  I  do  entirely  in  the  opinion  of  the  court  as  it  has 
been  written  and  read  by  the  Chief  Justice — without  any  quali- 
fication of  its  reasoning  or  its  conclusions — I  shall  neither  read 
nor  file  an  opinion  of  my  own  in  this  case,  which  I  prepared 
when  I  supposed  it  might  he  necessary  and  proper  for  me  to  do 
so."  And  at  the  conclusion  of  his  remarks,  page  456,  said  :  ''  1 
have  already  said  that  the  opinion  of  the  court  has  my  unquali- 
fied assent." 

Mr.  Justice  Grier,  on  page  469  of  the  report,  after  express- 
ing his  concurrence  in  the  opinion  of  Mr.  Justice  Nelson  on  the 
questions  discussed  by  him,  said:  "I  also  concur  with  the 
opinion  of  the  court  as  dehvered  by  the  Chief  Justice,  that  the 
act  of  Congress  of  6  th  March,  1820,  is  unconstitutional  and 
void."  It  does  not  otherwise  appear  how  far  Judge  Grier  agreed 
in  the  reasoning  of  the  Chief  Justice  as  well  as  the  conclusions, 
thougli  there  is  a  strong  presumption  that  that  reasoning  was 
approved  of  by  him. 

§  495.  Justices  Daniel  and  Campbell  appear  to  have  rested 
their  opinions,  against  the  constitutionality  of  the  act  of  Con- 
gress, not  so  much  on  this  view  of  the  Constitution  operating  as 
private  law  in  the  Territories  for  the  protection  of  individual 
slave  owners,  the  doctrine  of  the  Chief  Justice,  as  on  their  views 
of  that  instmment  regarded  as  the  evidence  of  antecedent  pos- 
session of  sovereign  power,  or  on  one  of  those  theories  of  State 
sovereignty  by  which  the  instrument,  as  public  law,  may  be 
construed. 

Both  Justices  appear  to  have  thought  that  the  legislative 
(juridical)  power,  by  which  the  status  or  condition  of  private 
persons  in  the  Territories  is  to  be  determined,  is  not  vested  in 
the  national  Government  as  representing  the  integral  people  of 
the  United  States.  Though  Judge  Daniel  is  not  so  clear  as  is 
Judge  Campbell  in  indicating  by  what  other  possessors  of  sov- 
ereign power  such  status  or  condition  is  to  be  determined. 

§  496.  Mr.  Justice  Campbell  speaks  of  the  act  of  Congress 
as  an  infringement  of  rights  of  the  States.     Judge  Daniel's  Ian- 


532  SLAVERY   IN    THE   TERRITORIES. 

guage  conveys  the  idea  that,  in  prohibiting  slavery,  it  is  the 
right  of  private  persons,  a  right  under  private  law  that  would 
be  violated  in  the  case  of  the  immigrant  slave  owner  ;  rather 
than  the  sovereign  juridical  right  of  the  State  from  which  he 
came  which  would  be  infringed.  On  page  488,  Judge  Daniel 
observes,  "it  has  been  attempted  to  convert  this  prohibitory 
provision  of  the  act  of  1820,  not  only  into  a  weapon  with  which 
to  assail  the  inherent,  the  necessarily  inherent,  powers  of  inde- 
pendent sovereign  Governments,  but  into  a  mean  of  forfeiting 
that  equality  of  rights  and  immunities  which  are  the  birthright 
or  the  donative  from  the  Constitution  of  every  citizen  of  the 
United  States  within  the  length  and  breadth  of  the  nation.  In 
this  attempt  there  is  asserted  a  power  in  Congress,  whether 
from  incentives  of  interest,  ignorance,  faction,  partiality,  or  pre- 
judice, to  bestow  upon  a  portion  of  the  citizens  of  this  nation 
that  which  is  the  common  property  and  privilege  of  all ;  the 
power,  in  fine,  of  confiscation,  in  retribution  for  no  ofience,  or, 
if  for  an  ofience,  for  that  of  accidental  locality  only." 

After  referring  to  the  "  territory  or  other  property  "  clause, 
Mr.  Justice  Daniel,  on  the  next  page,  observes  :  "  And  upon 
every  principle  of  reason  or  necessity,  this  power  to  dispose  of 
and  to  regulate  the  territory  of  the  nation  could  be  designed  to 
extend  no  farther  than  to  its  preservation  and  appropriation  to  the 
uses  of  those  to  whom  it  belonged,  viz.  the  nation.  Scarcely 
any  thing  more  illogical  or  extravagant  can  be  imagined  than 
the  attempt  to  deduce  from  this  provision  in  the  Constitution  a 
power  to  destroy  or  in  any  wise  to  impair  the  civil  and  political 
rights  of  the  citizens  of  the  United  States,  and  much  more  so 
the  power  to  establish  inequalities  amongst  those  citizens  by 
creating  pri\aleges  in  one  class  of  those  citizens,  and  by  the  dis- 
franchisement of  other  portions  or  classes,  by  degrading  them 
from  the  position  they  previously  occupied. 

"  There  can  exist  no  rational  or  natural  connection  or  af- 
finity between  a  pretension  like  this  and  the  power  vested  by 
the  Constitution  in  Congress  with  regard  to  the  Territories  ;  on 
the  contrary,  there  is  an  absolute  incongruity  between  them. 

"  But  whatever  the  power  vested  in  Congress,  and  whatever 


MR.  JUSTICE    DANIEL  S   OPINION.  566 

the  precise  subject  to  which  that  power  extended,  it  is  clear 
that  the  power  related  to  a  subject  appertaining  to  the  United 
States,  and  one  to  be  disposed  of  and  regulated  for  the  benefit 
and  under  the  authority  of  the  United  States.  Congress  was 
made  simply  the  agent  or  trustee  for  the  United  States  and  could 
not,  without  a  breach  of  trust  and  a  fraud,  appropriate  the  sub- 
ject of  the  trust  to  any  other  beneficiary  or  cestui  que  trust  than 
the  United  States,  or  to  the  people  of  the  United  States,  upon 
equal  grounds,  legal  or  equitable.  Congress  could  not  appro- 
priate that  subject  to  any  one  class  or  portion  of  the  people  to 
the  exclusion  of  others,  politically  and  constitutionally  equals  ; 
but  every  citizen  would,  if  any  one  could  claim  it,  have  the 
like  rights  of  purchase,  settlement,  occupation,  or  any  other 
right  in  the  national  territory. 

"  Nothing  can  be  more  conclusive  to  show  the  equality  of 
this  with  every  other  right  in  all  the  citizens  of  the  United 
States,  and  the  iniquity  and  absurdity  of  the  pretension  to  ex- 
clude or  to  disfranchise  a  portion  of  them  because  they  are  the 
owners  of  slaves,  than  the  fact  that  the  same  instrument  which 
imparts  to  Congress  its  very  existence,  and  its  every  function 
guaranties  to  the  slaveholder  the  title  to  his  property,  and  gives 
him  the  right  to  its  reclamation  throughout  the  entire  extent  of 
the  nation  ;  and,  farther,  that  the  only  private  j^roperty  which 
the  Constitution  has  specifically  recognized,  and  has  imposed  it 
as  a  direct  obligation  both  on  the  States  and  the  Federal  Gov- 
ernment to  protect  and  enforce,  is  the  property  of  the  master  in 
his  slave  ;  no  other  right  of  property  is  placed  by  the  Constitution 
upon  the  same  high  ground,  nor  shielded  by  a  similar  guaranty. 

"  Can  there  be  imputed  to  the  sages  and  patriots  by  whom 
the  Constitution  was  framed,  or  can  there  be  detected  in  the 
text  of  that  Constitution,  or  in  any  rational  construction  or  im- 
plication deducible  therefrom,  a  contradiction  so  palpable  as 
would  exist  between  a  pledge  to  the  slave-holder  of  an  equality 
^vith  liis  fellow-citizens,  and  of  the  formal  and  solemn  assurance 
for  the  security  and  enjoyment  of  his  jjroperty,  and -a  warrant 
given,  as  it  were  unoflatu,  to  another,  to  rob  him  of  that  prop- 
erty, or  to  subject  him  to  proscription  and  disfranchisement  for 


V 


534  SLAVERY   IN    THE    TERRITORIES. 

possessing  or  for  endeavoring  to  retain  it  ?  The  injustice  and 
extravagance  necessarily  implied  in  a  supposition  like  this,  can- 
not be  rationally  imputed  to  the  patriotic  or  the  honest,  or  to 
those  who  were  merely  sane." 

In  thus  speaking,  in  this  last  paragraph,  of  "  the  formal  and 
solemn  assurance  fur  the  security  and  enjoyment  of  his  prop- 
erty," the  allusion  seems  to  be  to  those  provisions  of  the  Con- 
stitution which  relate  to  rights  in  respect  to  slaves,  and  which 
were  particularly  referred  to  in  the  preceding  paragraph.  It  is 
not  clear  whether  Judge  Daniel  would  agree  with  the  Chief 
Justice  in  declaring  slaves  to  be  recognized,  independently  of 
those  provisions,  as  property ;  and  protected,  as  other  property, 
by  the  fifth  article  of  the  Amendments  to  the  Constitution 
operating  as  a  bill  of  rights. 

§  497.  Mr.  Justice  Campbell  said,  "  I  concur  in  the  judg- 
ment pronounced  by  the  Chief  Justice,  but  the  importance  of 
the  cause,  the  expectation  and  interest  it  has  awakened,  and 
tlie  responsibility  involved  in  its  determination,  induce  me  to 
file  a  separate  opinion." 

On  page  513,  Judge  Campbell  observes  that  "  the  advocates 
for  Government  sovereignty  in  the  Territories  have  been  com- 
pelled to  abate  a  portion  of  the  pretensions  originally  made  in 
its  behalf,  and  to  admit  that  the  constitutional  prohibitions 
upon  Congress  operate  in  the  Territories.  But  a  constitutional 
prohibition  is  not  requisite  to  ascertain  a  limitation  upon  the 
authority  of  the  several  departments  of  the  Federal  Grovernment. 
Nor  are  the  States  or  people  restrained  by  any  enumeration  or 
definition  of  their  rights  or  liberties.  To  impair  or  diminish 
either,  the  department  must  produce  an  authority  from  the 
people  themselves,  in  tlieir  Constitution,"  &c.  It  seems  to  be 
Judge  Campbell's  doctrine  that  the  organized  Government  of  the 
United  States,  has  not,  as  a  whole,  any  power  whatever  in  the 
Territories,  or  that  the  powers  of  the  Executive  and  Judiciary 
are  only  incidental  or  ancillary  to  the  legislative  powers  which 
may  have,  been  granted  to  Congress,'  and  that  Congress  has  in 

'  The  necessity  of  determining,  in  the  first  instance,  the  mode  of  existence  of  the 
people  of  the  U.  S.,  the  authors  of  the  Constitution,  as  a  question  involved  in  the  de- 


u- 


MR.  JUSTICE    CAMPBELL'S    OPINION.  535 

the  Territories  only  the  general  powers  which  it  may  exer- 
cise for  any  part  of  the  United  States,  and  certain  special 
powers,  in  relation  to  lands,  &c.,  belonging  to  the  United  States, 
derived  from  the  "  territory  and  other  property"  clause.  Judge 
Campbell  does  not,  therefore,  rely,  with  the  Chief  Justice,  on 
that  part  of  the  Constitution  which  protects  the  individual  sub- 
ject equally  against  every  department  of  the  national  or  federal 
Government. 

From  the  greater  part  of  his  argument  on  this  point,  pp.  506 
— 514,  it  would  seem  to  be  his  •  opinion  that  the  inhabitants  of 
the  Territory,  or  a  certain  portion  of  them,  forming  a  pohtical 
people,  have  therein  the  residue  of  sovereignty,*  or  the  powers 
not  specifically  granted  to  the  national  Government,  although 
another  doctrine  is  at  the  same  time  enunciated  as  antagonis- 
tical  to  the  power  claimed  for  Congress,  which  would,  apparently, 
conflict  with  the  theory  of  a  residuary  sovereignty  inherent  in 
the  people  of  a  Territory.  This  (if  rightly  apprehended)  is,  that 
the  States  severally,  and  as  political  persons,  have  juridical 
power  in  the  Territories  ;  or,  that  they  may  and  do  extend  their 
laws  into  the  Territories  to  determine  the  rights  and  obligations 
of  persons  therein,  who  anteriorly  had  been  domiciled  within 
their  several  State  limits  ;  that  "  the  Constitution  and  laws  of 
one  or  more  States  determining  property,"  cannot  be  "pro- 
scribed "  by  altering  or  destroying  the  effects  of  those  laws  upon 
the  relations  of  such  persons  after  their  emigration  and  settle- 
ment in  the  Territoiy  ;  that  the  duty  of  the  national  Govern- 
ment is,  as  the  agent  of  the  States  severally,  to  maintain  these 
effects  in  the  Territories.  See  page  516  of  the  report.  In  other 
words  (using  the  nomenclature  herein  before  adopted)  the  doc- 
trine is,  that  the  national  Government  is  bound  to  actualize  or  v^ 
realize,  in  the  Territory,  the  rights  and  obligations  of  private 
persons  which  have  become  existent  under  "  the  Constitution 
and  laws  determining  property"   in  the   State  wherein   such 

termination  of  private  rights,  has  never  been '  more  apparent  than  in  these  questions 
respecting  the  law  of  the  temtories.     Judge  Campbell's  view  seems  to  coincide  with 
that  stated  ante,  in  the  second  paragraph  of  note  on  p.  409,  that  there  is  no  integral 
people  of  the  U.  S.,  and  to  go  to  the  extreme  of  that  theory. 
*  Compare  ante,  §§  376,  397. 


536  SLAVE::tY  ix  the  territories. 

persons  were  previously  domiciled,  and  has  no  power  to  deter- 
mine the  continuance  of  those  rights  and  obligations,  even  when 
the  persons  to  whom  they  have  been  attributed  have  become 
domiciled  in  the  Territory.  The  same  doctrine  would  seem  to 
limit  the  power  wliich  Mr.  Justice  Camp])ell  supposed  to  belong 
to  the  people  of  the  Territory. 

Although  this  is  properly  a  question  of  public  law,  or  one  of 
the  location  of  sovereign  power,  the  doctrine  is,  as  stated  by 
Judge  Campbell,  also  operative  as  private  law  ;  that  is,  it  is  a 
rule  by  whicli  judicial  tribunals  may  determine  rights  and  obli- 
gations of  private  persons  in  the  Territories.  On  page  514, 
Judge  Campbell  proceeds  to  say,  after  enumerating  certain  sub- 
jects of  legislation  as  being  within  the  power  of  Congress  :  *'  I 
admit  that  to  mark- the  bounds  for  the  jurisdiction  of  the  Gov- 
ernment of  the  United  States  within  the  Territory,  and  of  its 
power  in  respect  to  persons  and  things  within  the  municipal 
subdivisions  it  has  created,  is  a  work  of  delicacy  and  difficulty, 
and,  in  a  great  measure,  is  beyond  the  cognizance  of  the  judi- 
ciary department  of  that  Government.  How  much  nmnicipal 
power  may  be  exercised  by  the  people  of  the  Territory,  before 
their  admission  to  the  Union,  the  courts  of  justice  cannot  de- 
cide. This  must  depend  for  the  most  part  on  political  con- 
siderations, which  cannot  enter  into  the  determination  of  a  case 
of  law  or  equity.  I  do  not  feel  called  upon  to  define  the  juris- 
diction of  Congress.  It  is  sufficient  for  the  decision  of  this  case 
to  ascertain  whether  the  residuary  sovereignty  of  the  States  or 
people  has  been  invaded  by  the  eighth  section  of  the  act  of  6th 
March,  1820,  I  have  cited,  in  so  far  as  it  concerns  the  capacity 
and  statvs  of  persons  in  the  condition  and  circumstances  of  the 
plaintiff  and  his  family.  • 

"  These  States,  at  the  adoption  of  the  Federal  Constitution, 
were  organized  communities,  having  distinct  systems  of  muni- 

'  On  page  509,  Mr.  Justice  Campbell  says  of  "  the  expedient  contained  in  the 
eighth  section  "  of  the  Act  of  Congress,  the  Jfissouri  Compromise,  "  For  the  first  time 
in  the  history  of  the  country  has  its  operation  been  embodied  in  a  case  at  law,  and 
been  presented  to  this  court  for  their  judgment.  The  inquiry  is,  whether  there  are 
conditions  in  the  Constitutions  of  the  Territories  ■which  subject  the  capacity  and  status 
of  persons  within  their  limits  to  the  direct  action  of  Congress.  Can  Congress  deter- 
mine the  condition  and  status  of  persons  who  inhabit  the  Territories?" 


MR.  JUSTICE  Campbell's  opinion.  -'537 

cipal  law,  which,  though  derived  from  a  common  source,  and  re- 
cognizing in  the  main  similar  principles,  yet  in  some  respects 
had  become  imlike,  and  on  a  particular  subject  promised  to  be 

antagonistic. 

"  Their  systems  provided  protection  for  life,  hberty,  and 
property,  among  their  citizens,  and  for  the  determination  of  the 
condition  and  capacity  of  the  persons  domiciled  within  their 
limits.  These  institutions,  for  the  most  part,  were  x)laced  be- 
yond the  control  of  the  Federal  Government.  The  Constitution 
allows  Congress  to  coin  money,  and  regulate  its  value  ;  to  regu- 
late foreign  and  Federal  commerce  ;  to  secure,  for  a  limited  pe- 
riod, to  authors  and  inventors,  a  property  in  their  writings  and 
discoveries  ;  and  to  make  rules  concerning  captures  in  war  ;  and, 
within  the  limits  of  these  powers,  it  has  exercised  rightly,  to  a 
greater  or  less  extent,  the  power  to  determine  what  shall  and 
what  shall  not  be  property. 

"  But  the  great  powers  of  war  and  negotiation,  finance, 
postal  communication,  and  commerce,  in  general,  when  em- 
ployed in  respect  to  the  property  of  a  citizen,  refer  to,  and  de- 
pend upon,  the  municipal  laws  of  the  States,  to  ascertain  and 
determine  what  is  property,  and  the  rights  of  the  ovnier,  and 
the  tenure  by  which  it  is  held. 

"  Whatever  these  Constitutions  and  laws  validly  determine 
to  be  property,  it  is  the  duty  of  the  Federal  Gx)vernment, 
through  the  domain  of  jurisdiction  merely  Federal,  to  recognize 
to  be  property. 

"  And  this  principle  follows  from  the  structure  of  the  re- 
spective Governments,  State  and  Federal,  and  their  reciprocal 
relations.  They  are  different  agents  and  trustees  of  the  people 
of  the  several  States,  appointed  with  different  powers  and  with 
distinct  purposes,  but  whose  acts,  within  the  scope  of  tlieir  re- 
spective jurisdictions,  are  mutually  obligatory.  They  are  re- 
spectively the  depositories  of  such  powers  of  legislation  as  the 
people  were  willing  to  surrender,  and  their  duty  is  to  co-operate 
within  their  several  jurisdictions  to  maintain  the  rights  of  the 
same  citizens  under  both  Governments  unimpaired.  A  pro- 
scription, therefore,  of  the  Constitution  and  laws  of  one  or  more 


538  MR.  JUSTICE  Campbell's  opinion. 

States,  determinmg  property,  on  tlie  part  of  the  Federal  Gov- 
craiiient,  by  -wliicli  the  8tal)ility  of  its  social  system  may  be  en- 
dangered, is  plainly  repugnant  to  the  conditions  on  which  the 
Federal  Constitution  was  adopted,  or  which  that  Government 
was  designed  to  accomplish.  Each  of  the  States  surrendered 
its  powers  of  war  and  negotiation,  to  raise  armies  and  to  support 
a  navy,  and  all  of  these  powers  are  sometimes  required  to  pre- 
serve a  State  from  disaster  and  ruin.  The  Federal  Government 
was  constituted  to  exercise  these  powers  for  the  preservation  of 
the  States,  respectively,  and  to  secure  to  all  their  citizens  the 
enjoyment  of  the  rights  which  were  not  surrendered  to  the  Fed- 
eral Government." 

On  page  516,  the  same  judge  observes  :  "  This  court  have 
determined  that  the  intermigration  of  slaves  was  not  committed 
to  the  jurisdiction  or  control  of  Congress.^  Wherever  a  master 
is  entitled  to  go  within  the  United  States,  liis  slave  may  accom- 
pany him,  without  any  impediment  from,  or  fear  of,  congres- 
sional legislation  or  interference.  The  question  then  arises 
whether  Congress,  which  can  exercise  no  jurisdiction  over  the 
relations  of  master  and  slave  within  the  limits  of  the  Union, 
and  is  bound  to  recognize  and  respect  the  rights  and  relations 
that  validly  exist  under  the  Constitutions  and  laws  of  the  States, 
can  deny  the  exercise  of  those  rights,  and  prohibit  the  contin- 
uance of  those  relations,  within  the  Territories.  And  the  cita- 
tion of  State  statutes  prohibiting  the  immigration  of  slaves,  and 
of  the  decisions  of  State  courts  enforcing  the  forfeiture  of  the 
master's  title  in  accordance  with  their  rule,  only  darkens  the 
discussion.  For  the  question  is,  have  Congress  the  municipal 
sovereignty  in  the  Territories  which  the  State  Legislatures  have 
derived  from  the  authority  of  the  people  and  exercise  in  the 
States  ?  And  this  depends  upon  the  construction  of  the  article 
in  the  Constitution  before  referred  to.  And,  in  my  opinion, 
that  clause  confers  no  power  upon  Congress  to  dissolve  the  rela- 
tions of  the  master  and  slave  on  the  domain  of  the  United 
States,  either  witliin  or  without  any  of  the  States." 

*  Referring  probably  to  Groves  v.  Slaugliter,  15  Peters,  449. 


MR,  JUSTICE    CATRON'S   OPINION.  539 

On  the  supposition  then  that  the  national  Government  does 
hold,  in  and  for  the  Territory,  those  powers  which  a  State  Gov- 
ernment holds  in  and  for  a  State, '  it  does  not  appear  that  Judge 
Campbell  would  agree  with  the  Chief  Justice,  that  the  slave- 
holder's right  is  protected  there  by  the  private  law  of  the  Con- 
stitution, operating  like  a  bill  of  rights  in  the  guarantee  of 
private  proijerty. 

§  498.  Mr.  Justice  Catron,  on  pages  519-523,  maintains,  as 
firmly  as  any  other  member  of  the  court,  that  the  only  valid  leg- 
islation operating  in  the  Territories  is  that  proceeding  from 
power  held  by  Congress,  and  appears  to  be  of  the  opinion  that 
all  the  ordinary  powers  of  a  State  Government  have,  by  the  words 
of  the  Constitution,  been  granted  to  Congress.  But  Judge  Ca- 
tron finds  that  the  power  of  Congress  in  the  Territory  of  Louisiana 
is  restricted  by  the  conditions  of  the  treaty,  of  cession,  made 
with  France  in  1803  (see  pages  524-528).  This  doctrine, 
which  is  the  ground  principally  relied  on  by  Judge  Catron  in 
the  decision  of  the  question,  will  be  further  considered  in  a  later 
portion  of  this  work. 

But  notwithstanding  his  view  of  the  powers  of  Congress  in 
the  Territories,  as  above  stated.  Judge  Catron  appears  at  the 
same  time  to  be,  in  some  degree,  with  either  Judge  Daniel  or 
Judge  Campbell  in  their  doctrines  of  the  limitation  of  the  power 
of  Congress  in  all  the  Territories,  as  respects  a  right  of  "  equality  " 
belonging  to  the  States  or  to  the  citizens  of  the  States. 

On  page  526  of  the  report,  after  referring  to  the  cessions 
made  by  Georgia  and  North  Carolina  of  western  territory,  and 
to  the  fact  that  no  guaranty  was  required  by  Georgia  from  the  i^ 
United  States  for  the  protection  of  slave  property,  Mr.  Justice 
Catron  says,  "  The  Federal  Constitution  was  relied  on  to  secure 
the  rights  of  Georgia  and  her  citizens  during  the  Territorial 
condition  of  the  country.  She  relied  on  the  indisputable  truths, 
that  the  States  were  by  the  Constitution  made  equals  in  po- 
litical rights  and  equals  in  the  right  to  participate  in  the  com- 
mon property  of  all  the  States  United,  and  held  in  trust  for 
them.     The  Constitution  having  provided  that  the  '  citizens  of 

»  Ante,  p.  528. 


540  MR.  JUSTICE    CATRON'S    OPINION. 

pach  State  shall  be  entitled  to  all  privileges  and  immunities  of 
citizens  of  the  several  States/  the  right  to  enjoy  the  territory 
as  equals  was  reserved  to  the  States,  and  to  the  citizens  of  the 
States  respectively.  The  cited  clause  is  not  that  the  citizens  of 
the  United  States  shall  have  equal  i)rivileges  in  the  Territories, 
but  the  citizen  of  each  State  shall  come  there  in  right  of  his 
State,  and  enjoy  the  common  property.  He  secures  his  equality 
through  the  equality  of  his  State,  by  virtue  of  that  great  funda- 
mental condition  of  the  Union,  the  equality  of  the  States. 

"  Congress  cannot  indirectly  what  the  Constitution  prohibits 
directly.^  If  the  slave-holder  is  prohibited  from  going  to  the 
Territory  with  his  slaves,  who  are  parts  of  his  family  in  name 
and  in  fact,^  it  will  follow  that  men  owning  laAvful  property 
in  their  own  States,  carrying  with  them  the  equality  of  their 
State  to  enjoy  the  common  property,  may  be  told,  you  cannot 
come  here  with  your  slaves,  and  he  will  be  held  out  at  the 
border.  By  this  subterf'uge,  owners  of  slave  property,  to  the 
amount  of  thousands  of  millions,  might  be  almost  as  effectually 
excluded  from  removing  into  the  Territory  of  Louisiana  north  of 
thirty-six  degrees  thirty  minutes,  as  if  the  law  declared  that 
owners  of  slaves,  as  a  class,  should  be  excluded,  even  if  their 
slaves  should  be  left  behind.  Just  as  well  might  Congress  have 
said  to  those  of  the  North,  you  shall  not  introduce  into  the  ter- 
ritory south  of  said  line  your  cattle  and  horses,  as  the  country 
is  already  overstocked,  nor  can  you  introduce  your  tools  of  trade, 
or  machines,  as  the  policy  of  Congress  is  to  encourage  the  cul- 
ture of  sugar  and  cotton  south  of  the  line,  and  so  to  provide  that 
the  Northern  people  shall  manufacture  for  those  of  the  South, 
and  barter  for  the  staple  articles  slave  labor  produces.  And 
thus  the  Northern  farmer  and  mechanic  would  be  held  out,  as 

'  The  clause  in  Art.  iv,  sec.  2,  "  The  citizens  of  each  State  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  hi  the  several  States."  It  would  appear  from  this 
that,  in  the  judge's  opinion,  the  slave-holder's  right  under  the  law  of  his  former  residence 
is  guaranteed  even  ■when  the  Territory  becomes  a  State,  and  if  so,  it  must  be  equally 
guaranteed  in  all  the  older  States. 

"  lieferring,  apparently,  to  the  clause  above  cited. 

"  Here  a  somewhat  different  theory  of  the  right  of  slave-holders  is  intimated, 
that  slaveiy  is  a  relation  between  persons,  one  of  the  relations  of  family,  like  that  of 
husband  and  wife,  parent  ai)d  child.  It  can  hardly  be  meant  that  in  the  slave-holding 
States  wives  and  children  are  property. 


SLAVERY    IX    THE    TERRITORIES.  541 

the   slave-liokler   "was   for   tliirty   years,    by  tlie   Missouri   re- 
striction. 

"  If  Congress  could  prohibit  one  species  of  property,  lawful 
throughout  Louisiana  when  it  was  acquired,  and  lawful  in  the 
State  from  whence  it  was  brought,  so  Congress  might  exclude 
any  or  all  property." 

And  in  concluding  the  opinion, — "  My  oi)inion  is,  that  the 
third  article  of  the  treaty  of  1803,  ceding  Louisiana  to  the  United 
States,  stands  protected  by  the  Constitution,  and  cannot  be  re- 
pealed by  Congress. 

"  And,  secondly,  that  the  act  of  1820,  known  as  the  Mis- 
souri compromise,  violates  the  most  leading  feature  of  the  Con- 
stitution, a  feature  on  which  the  Union  depends,  and  which 
secui'cs  to  the  respective  States  and  their  citizens  an  entire 
EQUALITY  of  rights,  privileges,  and  immunities. 

"On  these  grounds,  I  hold  the  compromise  act  to  have  been 
void." 

And  although  Judge  Catron  does  not  allude  to  those  clauses 
of  the  Constitution  which  operate  as  a  biU  of  rights  and  as  pri- 
vate law,  yet  it  might,  from  the  portion  of  his  opinion  before 
cited,  be  inferred  that  he  should,  in  consistency,  have  agreed 
with  the  Chief  Justice  in  holding  that  slaves  are,  by  them,  pro- 
tected as  property,  in  the  same  degree  as  domestic  animals  and 
inanimate  chattels  ;  that  is,  if  he  admits  that  the  guarantees  of 
private  rights,  in  the  Constitution,  operate  in  the  Territories, 
which,  however,  does  not  appear  from  his  opinion.  .  For  he  finds 
the  restriction  in  a  clause  in  the  treaty  which  secured  the  in- 
habitants in  the  "  free  enjoyment  of  their  liberty,  property,  and 
religion."  And  this,  the  Judge  supposes,  applies  to  all  slave- 
holders there  ;  whether  they  were  resident  under  the  former 
dominion,  or  are  those  who  have  acquired  their  rights  through 
them,  or  are  immigrants  from  the  States.  (See  pp.  524,  525.) 
And  it  would  seem  that,  in  determining  what  is  or  is  not  prop- 
erty in  view  of  the  treaty  provision,  the  same  criterion  should 
be  adopted  which,  according  to  the  Chief  Justice,  determines 
slaves  to  be  property  in  view  of  the  constitutional  guarantee. 

§  499.  In  the  same  case  Justices  McLean  and  Curtis  main- 
tained the  power  of  Congress  to  prohibit  slavery  in  the  Terri- 


542  SLAVERY    IN    THE    TERRITORIES. 

tories,  and,  in  their  dissenting  opinions  both  equally  opposed  the 

doctrine  that  the  right  of  the  immigrating  slave-holder  is  pro- 
tected under  the  constitutional  guarantee  of  private  property 
and  the  doctrine  that  it  is  maintained  in  the  Territory  by  the 
law  of  the  State  in  which  he  formerly  resided.  In  their  exam- 
ination the  two  questions  are  hardly  distinguished  as  separate 
inquiries. 

§  500.  Mr.  Justice  McLean's  opinion  seems  to  be  that  Con- 
gress has  power  to  abolish  or  prohibit  slavery  in  the  Territories, 
but  has  no  power  to  establish  or  introduce  slavery.  In  denying 
the  latter  power,  Judge  McLean  relies  on  the  fact  that  it  is  not 
granted  by  the  Constitution,  and  is  "  contrary  to  its  spirit," 
though  appearing  to  admit  that  where  slavery  has  before  existed 
or  been  lawful  in  a  Territory  it  may  thereafter  be  maintained  or 
recognized  by  the  national  Government ;  and  he  derives  the 
power  of  jjrohibiting  it  only  from  his  own  view  of  what  "  sound 
national  policy  "  may  justify,  as  a  "  needful  rule  and  regulation  " 
under  the  "territory  and  other  property"  clause.  Judge 
McLean's  language,  on  page  542  of  the  report  is  : 

"  Did  Chief  Justice  Marshall,  in  saying  that  Congress  gov- 
erned a  Territory,  by  exercising  the  combined  powers  of  the 
Federal  and  State  Governments,  refer  to  unlimited  discretion  ? 
A  Government  which  can  make  white  men  slaves  ?  Surely, 
such  a  remark  in  the  argument  must  have  been  inadvertently 
uttered.  On  the  contrary,  there  is  no  power  in  the  Constitution 
by  which  Congress  can  make  either  white  or  black  men  slaves. 
In  organizing  the  Government  of  a  Territory,  Congress  is  limited 
to  means  appropriate  to  the  attainment  of  the  constitutional 
object.  No  powers  can  be  exercised  which  are  prohibited  by 
the  Constitution,  or  which  are  contrary  to  its  spirit ;  so  that, 
whether  the  object  may  be  the  protection  of  the  persons  and 
property  of  purchasers  of  the  public  lands,  or  of  communities 
who  have  been  annexed  to  the  Union  by  conquest  or  purchase, 
they  are  initiatory  to  the  establishment  of  State  Governments, 
and  no  more  power  can  be  claimed  or  exercised  than  is  necessary 
to  the  attainment  of  the  end.  This  is  the  limitation  of  aU  the 
Federal  powers. 


MR.  JUSTICE  Mclean's  opinion.  543 

"  But  Congress  has  no  power  to  regulate  the  internal  con- 
cerns of  a  State,  as  of  a  Territory ;  consequently,  in  providing 
for  the  Government  of  a  Territory,  to  some  extent,  the  combined 
powers  of  the  Federal  and  State  Governments  are  necessarily 
exercised. 

"  If  Congress  should  deem  slaves  or  free  colored  persons  in- 
jurious to  the  population  of  a  free  Territory,  as  conducing  to 
lessen  the  value  of  the  pubKc  lands,  or  on  any  other  ground  con- 
nected with  the  public  interest,  they  have  the  power  to  prohibit 
them  from  becoming  settlers  in  it.  This  can  be  sustained  on 
the  ground  of  a  sound  national  jjolicy,  which  is  so  clearly  shown 
in  our  history  by  practical  results,  that  it  would  seem  no  con- 
siderate individual  can  question  it.  And,  as  regards  any  un- 
fairness of  such  a  policy  to  our  Southern  brethren,  as  urged  in 
the  argument,  it  is  only  necessary  to  say  that,  with  one-fourth 
of  the  Federal  population  of  the  Union,  they  have  in  the  slave 
States  a  larger  extent  of  fertile  territoiy  than  is  included  in  the 
free  States  ;  and  it  is  submitted,  if  masters  of  slaves  be  re- 
stricted from  bringing  them  into  free  territory,  that  the  restric- 
tion on  the  free  citizens  of  non-slaveholding  States,  by  bringing 
slaves  into  free  territory,  is  four  times  greater  than  that  com- 
plained of  by  the  South.  But,  not  only  so  ;  some  three  or  four 
hundred  thousand  holders  of  slaves,  by  bringing  them  into  free 
territory,  impose  a  restriction  on  twenty  millions  of  the  free 
States.  The  repugnancy  to  slavery  would  probably  prevent 
fifty  or  a  hundred  freemen  from  settling  in  a  slave  Territory, 
where  one  slaveholder  would  be  prevented  from  settling  in  a 
free  Territory. 

"  This  remark  is  made  in  answer  to  the  argument  urged,  that 
a  prohibition  of  slavery  in  the  free  Territories  is  inconsistent  with 
the  continuance  of  the  Union.  Where  a  territorial  Government 
is  established  in  a  slave  Territory,  it  has  uniformly  remained  in 
that  condition  until  the  people  form  a  State  Constitution  ;  the 
same  course  where  the  Territory  is  free,  both  parties  acting  in 
good  faith,  would  be  attended  with  satisfactory  results."' 

'  Here  Judge  McLean  seems  to  argue  only  for  a  power  to  prevent  the  introduction 
of  slaves  into  territory  previously  vacant,  not  for  power  to  change  the  condition  of 

35 


544  SliAVERT    IN    THE    TERRITORIES. 

In  concluding  liis  examination  of  this  point  of  the  case,  Judge 
McLean  observes,  on  page  547,  "  If  Congress  may  establish  a 
Territorial  Government  in  the  exercise  of  its  discretion,  it  is  a  clear 
principle  that  a  court  cannot  control  that  discretion.  This  being 
the  case,  I  do  not  see  on  what  ground  the  act  is  held  to  be  void. 
It  did  not  purport  to  forfeit  property,  or  take  it  for  public  pur- 
poses. It  only  prohibited  slavery  ;  in  doing  which  it  followed 
the  ordinance  of  1787."  Judge  McLean  then  proceeds  to  the 
international  question  of  "  the  effect  of  taking  slaves  into  a 
State  or  Territory,  and  so  holding  them,  where  slavery  is  pro- 
hibited." Although  the  argument  here  assumes  that  there  is 
no  local  (internal)  law  in  the  Territory  maintaining  slavery  as 
the  condition  of  domiciled  persons,  some  passages  in  this  part 
of  his  opinion  are  a  reply  to  those  doctrines  of  other  members  of 
the  Court  which  would  maintain  its  existence,  as  between  mas- 
ters and  slaves  emigrating  thither,  irrespectively  of  the  legis- 
lative (juridical)  action  of  the  national  Government,  and  thus 
make  it  an  effect  of  the  local  (internal)  law  of  the  Territory.' 
Judge  McLean  first  refers  to  the  principle  that  slavery  exists  by 
local  law,  or  municipal  law,  in  the  sense  of  jus  proprium,  as  re- 
cognized by  the  Supreme  Court,  in  Prigg's  case,  16  Peters,  611, 
"  The  state  of  slavery  is  deemed  to  be  a  mere  municipal  regu- 

persons  who,  before,  had  been  lawfully  held  as  slaves,  and  does  not  consider  the  act  as 
one  abolishing  slavery.  Judge  Catron,  on  the  other  hand,  (p.  525.)  says,  "  The  Mis- 
souri Compromise  line  was  very  aggressive ;  it  declared  that  slavery  was  abolished  for 
ever  throughout  a  country  reaching  from  the  Mississippi  river  to  the  Pacific  ocean," 
&c.,  and  assuming  this  extent  for  the  country  ceded  by  France,  designates  the  portion 
in  which  slavery  was  prohibited  as  four-fifths  of  the  whole.  The  term  "  aggressive  " 
would  be  more  appropriate  on  some  other  theory  than  that  which  Judge  Catron  prin- 
cipally relied  on  in  denying  the  power  of  Congress,  i.  e.  the  treaty  securing  the  in- 
habitants in  their  property,  «Scc.  For  at  the  date  of  cession,  and  even  in  1820,  the  date 
of  the  Act  of  Congress,  there  probably  was  not  a  single  negro  slave  in  the  whole  region 
o  which  it  applied. 

'  The  relations  of  persons  immigrating  into  a  country  or  forum  are  determined  by 
law,  which  is  private  international  law  in  the  first  instance,  or  while  such  persons  are 
distinguished  as  still  domiciled  in  their  former  residence.  If  the  same  relations  con- 
tinue, after  they  have  acquired  a  new  domicil,  they  must  be  called  effects  of  the  local 
or  internal  law  of  the  forum.  Comp.  ante,  §§  121,  195,  2-10.  The  question,  whether 
the  correlative  rights  and  obligations  of  master  and  slave  immigrating  into  the  Terri- 
tories may  be  judicially  recognized  there,  if  not  prohibited  by  the  legislative  enactment 
of  the  possessors  of  sovereign  power  therein,  is  to  be  considered  hereafter,  in  tracing  the 
local  municipal  laws  of  the  Territories.  This  question  and  that  of  the  legislative  power 
of  Congress  in  respect  to  slavery,  seem  not  to  have  been  clearly  distinguished  by  some 
of  the  Justices  in  their  opinions. 


MR.  JUSTICE  Mclean's  opinion.  545 

lation,  founded  upon  and  limited  to  the  range  of  the  territorial 
laws."  He  then  observes,  on  page  548  of  the  report,  "  By 
virtue  of  what  law  is  it  that  a  master  may  take  his  slave  into 
free  territory,  and  exact  from  him  the  duties  of  a  slave  ?  The 
law  of  the  Territory  does  not  sanction  it.  No  authority  can  be 
claimed  under  the  Constitution  of  the  United  States,  or  any  law 
of  Congress.  WiU  it  be  said  that  the  slave  is  taken  as  property, 
the  same  as  other  property  which  the  master  may  own?  To 
this  I  answer,  that  colored  persons  are  made  property  by  the 
law  of  the  State,  and  no  such  power  is  given  to  Congress.  Does 
the  master  cany  with  him  the  law  of  the  State  from  which  he 
removes  into  the  Territory  ?  and  does  that  enable  him  to  coerce 
his  slave  in  the  Territory  ?  Let  us  test  this  theory.  If  this 
may  be  done  by  a  master  from  one  slave  State,  it  may  be  done 
by  a  master  from  every  other  slave  State.  This  right  is  sup- 
posed to  be  connected  with  the  person  of  the  master,  by  virtue 
of  the  local  law.  Is  it  transferable  ?  May  it  be  negotiated,  as 
a  promissory  note  or  bill  of  exchange  ?  If  it  be  assigned  to  a 
man  from  a  free  State,  may  he  coerce  the  slave  by  virtue  of  it  ? 
What  shall  this  thing  be  denominated  ?  Is  it  personal  or  real 
property?  Or  is  it  an  indefinable  fragment  of  sovereignty, 
which  every  person  carries  with  him  from  his  late  domicil  1  One 
thing  is  certain,  that  its  origin  has  been  very  recent,  and  it  is 
unknown  to  the  laws  of  any  civilized  country." 

On  the  same  page.  Judge  McLean  also  says,  "It  is  said  the 
Territories  are  common  property  of  the  States,  and  that  a  man 
has  a  right  to  go  there  with  his  property.  This  is  not  contro- 
verted. But  the  court  say  a  slave  is  not  property  beyond  the 
operation  of  the  local  law  which  makes  him  such.  Never  was  a 
truth  more  authoritatively  and  justly  uttered  by  man."  Judge 
McLean  probably  here  refers  to  what  was  said  by  the  court  in 
Prigg's  case,  above  cited.' 

'  In  this  connection,  Judge  McLean  remarks,  on  the  same  page,  as  to  the  authority 
of  that  part  of  the  Opinion  of  the  Court,  which  maintains  that  slaves  are  recognized  as 
property  by  the  Constitution :  "  In  this  case,  a  majority  of  the  court  have  said  that  a 
slave  may  be  taken  by  his  master  into  a  Territory  of  the  United  States,  the  same  as  a 
horse,  or  any  other  kind  of  property.  It  is  true,  this  was  said  by  the  court,  as  also 
many  other  things  which  are  of  no  authority.  Nothing  that  has  been  said  by  them, 
which  has  not  a  direct  bearing  on  the  jurisdiction  of  the  court,  against  which  they  de- 


546  MR.  JUSTICE    CURTIS'    OPINION. 

§  501.  Mr.  Justice  Curtis,  who  in  the  same  case  very  fully 
examined  the  several  points  involved  in  the  question  of  the  con- 
stitutionality of  the  Missouri  Compromise,  considers,  on  pp.  604- 
619,  the  preliminary  inquiry,  or  what  may  be  distinguished  as 
being  more  particularly  the  question  of  public  law,  that  of  the 
source  and  extent  of  the  powers  of  Congress  over  the  Territories, 
as  determinable  from  the  language  of  the  Constitution  and  from 
the  practice  of  the  Government  in  its  several  departments. '  On 
page  619,  Judge  Curtis  proceeds  to  say  : 

"  It  appears,  however,  from  what  has  taken  place  at  the  bar, 
that  notwithstanding  the  language  of  the  Constitution,  and  the 
long  line  of  legislative  and  executive  j^recedents  under  it,  three 
different  and  opposite  views  are  taken  of  the  power  of  Congress 
respecting  slavery  in  the  Territories. 

"  One  is,  that  though  Congress  can  make  a  regulation  pro- 
hibiting slavery  in  a  Territory,  they  cannot  make  a  regulation 
allowing  it ;  another  is,  that  it  can  neither  be  estabhshed  nor 
prohibited  by  Congress,  but  that  the  people  of  a  Territory,  when 
organized  by  Congress,  can  establish  or  prohibit  slavery  ;  while 
the  third  is,  that  the  Constitution  itself  secures  to  every  citizen 
who  holds  slaves,  under  the  laws  of  any  State,  the  indefeasible 
right  to  carry  them  into  any  Territory,  and  there  hold  them  as 
property. 

''  No  particular  clause  of  the  Constitution  has  been  referred 
to  at  the  bar  in  support  of  either  of  these  views.  The  first  seems 
to  be  rested  upon  general  considerations  concerning  the  social 
and  moral  evils  of  slavery,  its  relations  to  republican  Govern- 
ments, its  inconsistency  with  the  Declaration  of  Independence 
and  with  natural  right. 

cided,  can  be  considered  as  authority.  I  shall  certainly  not  regard  it  as  snch.  The 
question  of  jurisdiction,  being  before  the  court,  was  decided  by  them  authoritatively, 
biit  nothing  beyond  that  question.  A  slave  is  not  a  mere  chattel.  He  bears  the  im- 
press of  his  Maker,  and  is  amenable  to  the  laws  of  God  and  man,  and  he  is  destined  to 
an  endless  existence."  Here,  as  is  common  in  these  questions,  the  judge  determines 
whether  natural  persons  mav  or  may  not  be  property  according  to  his  individual 
sense  of  natural  right,  without  seeming  to  recognize  any  exterior  judicial  criterion. 
It  seems  that,  of  the  six  Justices  who  declared  the  Act  of  Congress  to  be  uncon- 
stitutional, only  four,  or  perhaps  only  three,  held  that  slaves  are  recognized  by  the 
national  jurispnidence  as  ordinary  property. 

^  This  practice  is  hereinafter  to  be  described  in  the  history  of  the  local  law  of  the 
several  Temtories  and  States  formed  in  them. 


SLAVERY    IN    THE   TERRITORIES.  547 

"  The  second  is  drawn  from  considerations  equally  general, 
concerning  the  right  of  self-government,  and  the  nature  of  the 
political  institutions  which  have  been  established  by  the  people 
of  the  United  States. 

"  While  the  third  is  said  to  rest  upon  the  equal  right  of  all 
citizens  to  go  with  their  property  upon  the  public  domain,  and 
the  inequality  of  a  regulation  which  would  admit  the  property 
of  some  and  exclude  the  property  of  other  citizens  ;  and,  inas- 
much as  slaves  are  chiefly  held  by  citizens  of  those  particular 
States  where  slavery  is  established,  it  is  insisted  that  a  regulation 
excluding  slavery  from  a  Territory  operates,  practically,  to  make 
an  unjust  discrimination  between  citizens  of  different  States,  in 
respect  to  their  use  and  enjoyment  of  the  territory  of  the  United 
States. 

"  With  the  weight  of  either  of  these  considerations,  when 
presented  to  Congress  to  influence  its  action,  this  court  has  no 
concern.  One  or  the  other  may  be  justly  entitled  to  guide  or 
control  the  legislative  judgment  upon  what  is  a  needful  regu- 
lation. The  question  here  is,  whether  they  are  sufficient  to 
authorize  this  court  to  insert  into  this  clause  of  the  Constitution 
an  exception  of  the  exclusion  or  allowance  of  slavery,  not  found 
therein,  nor  in  any  other  part  of  that  instrument.  To  ingraft 
on  any  instrument  a  substantive  exception  not  found  in  it,  must 
be  admitted  to  be  a  matter  attended  with  great  difficulty.  And 
the  difficulty  increases  with  the  importance  of  the  instrument 
and  the  magnitude  and  complexity  of  the  interests  involved  in 
its  construction.  To  allow  this  to  be  done  with  the  Constitution, 
upon  reasons  purely  political,  renders  its  judicial  interpretation 
impossible — because  judicial  tribunals,  as  such,  cannot  decide 
upon  political  considerations.  Political  reasons  have  not  the 
requisite  certainty  to  afibrd  rules  of  juridical  interpretation.  They 
are  different  in  difierent  men.  They  are  different  in  the  same 
men  at  different  times.  And  when  a  strict  interpretation  of  the 
Constitution,  according  to  the  fixed  rules  which  govern  the  in- 
terpretation of  laws,  is  abandoned,  and  the  theoretical  opinions 
of  individuals  are  allowed  to  control  its  meaning,  we  have  no 
longer  a   Constitution  ;  we   are  under  the  government  of  indi- 


548  MR.  JUSTICE    CURTIS'   OPINION. 

vidual  men,  who,  for  the  time  being,  have  power  to  declare  what 
the  Constitution  is,  according  to  their  own  views  of  what  it 
ought  to  mean.  When  such  a  method  of  interpretation  of  the 
Constitution  obtains,  in  phace  of  a  repubhcan  Government,  with 
limited  and  defined  powers,  we  have  a  Government  which  is 
merely  an  exponent  of  the  will  of  Congress  ;  or  what,  in  my 
opinion,  would  not  be  preferable,  an  exponent  of  the  individual 
political  opinions  of  the  members  of  this  court. 

"■  If  it  can  be  shown,  by  any  thing  in  the  Constitution  itself, 
that  when  it  confers  on  Congress  the  power  to  make  all  needful 
rules  and  regulations  respecting  the  territory  belonging  to  the 
United  States,  the  exclusion  or  the  allowance  of  slavery  was  ex- 
cepted ;  or  if  any  thing  in  the  history  of  this  provision  tends  to 
show  that  such  an  exception  was  intended,  by  those  who  framed 
and  adopted  the  Constitution  to  be  introduced  into  it,  I  hold  it 
to  be  my  duty  carefully  to  consider,  and  to  allow  just  weight  to 
such  considerations  in  interpreting  the  positive  text  of  the  Con- 
stitution. But  where  the  Constitution  has  said  all  needful  rules 
and  regulations,  I  must  find  something  more  than  theoretical 
reasoning  to  induce  me  to  say  it  did  not  mean  all. 

"  There  have  been  eminent  instances  in  this  court  closely 
analogous  to  this  one,  in  which  such  an  attempt  to  introduce  an 
exception,  not  found  in  the  Constitution  itself,  has  failed  of 
success." 

After  referring  to  settled  constructions  of  the  grant  to  Con- 
gress of  power  of  exclusive  legislation  in  all  cases  whatsoever 
within  the  District  of  Columbia,  and  power  to  regulate  commerce 
with  foreign  nations, — Judge  Curtis,  on  page  623,  proceeds  to 
say: 

"  While  the  regulation  is  one  '  respecting  the  territory,'  while 
it  is,  in  the  judgment  of  Congress,  '  a  needful  regulation,'  and  is 
thus  completely  within  the  words  of  the  grant,  while  no  other 
clause  of  the  Constitution  can  be  shown,  which  requires  the  in- 
sertion of  an  exception  respecting  slavery,  and  while  the  ]>ractical 
construction  for  a  period  of  upwards  of  fifty  years  forbids  such  an 
exception,  it  would,  in  my  opinion,  violate  every  sound  rule  of  in- 
terpretation to  force  that  exception  into  the  Constitution  upon 


SLAVERY   IN    THE    TERRITORIES.  549 

the  strength  of  abstract  political  reasoning,  which  we  are  bmmd 
to  believe  the  people  of  the  United  States  thought  insufficient 
to  induce  them  to  limit  the  power  of  Congress,  because  what 
they  have  said  contains  no  such  limitation. 

"  Before  I  proceed  further  to  notice  some  other  grounds  of 
supposed  objection  to  this  power  of  Congress,  I  desire  to  say, 
that  if  it  were  not  for  my  anxiety  to  insist  upon  what  I  deem 
a  correct  exposition  of  the  Constitution,  if  I  looked  only  to  the 
purposes  of  the  argument,  the  source  of  the  power  of  Congress 
asserted  in  the  opinion  of  the  majority  of  the  court  would  answer 
those  purposes  equally  well.  For  they  admit  that  Congress  has 
power  to  organize  and  govern  the  Territories  until  they  arrive  at 
a  suitable  condition  for  admission  to  the  Union  ;  they  admit, 
also,  that  the  kind  of  Government  which  shall  thus  exist  should 
be  regulated  by  the  condition  and  wants  of  each  Territory,  and 
that  it  is  necessarily  committed  to  the  discretion  of  Congress  to 
enact  such  laws  for  that  purpose  as  that  discretion  may  dictate ; 
and  no  limit  to  that  discretion  has  been  shown,  or  even  suggested, 
save  those  positive  prohibitions  to  legislate,  which  are  found  in 
the  Constitution. 

"  I  confess  myself  unable  to  perceive  any  difference  whatever 
between  my  own  opinion  of  the  general  extent  of  the  power  of 
Congress  and  the  opinion  of  the  majority  of  the  court,  save  that 
I  consider  it  derivable  from  the  express  language  of  the  Consti- 
tution, while  they  hold  it  to  be  silently  implied  from  the  power 
to  acquire  territory.  Looking  at  the  power  of  Congress  over  the 
Territories  as  of  the  extent  just  described,  what  positive  pro- 
hibition exists  in  the  Constitution,  which  restrained  Congress 
from  enacting  a  law  in  1820  to  prohibit  slavery  north  of  thirty- 
six  degrees  thirty  minutes  north  latitude  ? 

"  The  only  one  suggested  is  that  clause  in  the  fifth  article  of 
the  amendments  of  the  Constitution  which  declares  that  no 
person  shall  be  deprived  of  his  life,  liberty,  or  property,  without 
due  process  of  law.  I  will  now  proceed  to  examine  the  question, 
whether  this  clause  is  entitled  to  the  effect  thus  attributed  to  it.  It 
is  necessary,  first,  to  have  a  clear  view  of  the  nature  and  incidents 
of  that  particular  species  of  property  which  is  now  in  question. 


550  SLAfERT   IN    THE    TERRITORIES. 

"  Slavery,  being  contrary  to  natural  right,  is  created  only  by 
municipal  law.  This  is  not  only  plain  in  itself,  and  agreed  by 
all  writers  on  the  subject,  but  is  inferable  from  the  Constitution, 
and  has  been  explicitly  declared  by  this  court.  The  Constitu- 
tion refers  to  slaves  as  '  persons  held  to  service  in  one  State,  under 
the  laws  thereof. '  Nothing  can  more  clearly  describe  a  status 
created  by  municipal  law.  In  Prigg  v.  Pennsylvania,  (16  Pet. 
611,)  this  court  said  :  '  The  state  of  slavery  is  deemed  to  be  a 
mere  municipal  regulation,  founded  on  and  limited  to  the  range 
of  territorial  laws.'  In  Piankiu  v.  Lydia,  (2  Marsh.  12,  470,) 
the  Supreme  Court  of  Appeals  of  Kentucky,  said  :  '  Slavery  is 
sanctioned  by  the  laws  of  this  State,  and  the  right  to  hold  them 
under  our  municipal  regulations  is  unquestionable.  But  we  view 
this  as  a  right  existing  by  positive  law  of  a  municipal  character, 
without  foundation  in  the  law  of  nature  or  the  unwritten  common 
law.'  I  am  not  acquainted  with  any  case  or  writer  questioning 
the  correctness  of  this  doctrine.  (See  also  1  Purge,  Col.  and 
For.  Laws,  738-741,  where  the  authorities  are  collected.) 

"  The  status  of  slavery  is  not  necessarily  always  attended 
with  the  same  powers  on  the  part  of  the  master.  The  master  is 
subject  to  the  suj^reme  power  of  the  State,  whose  will  controls 
his  action  towards  his  slave,  and  this  control  must  be  defined  and 
regulated  by  the  municipal  law.  In  one  State,  as  at  one  period 
of  the  Roman  law,  it  may  put  the  life  of  the  slave  into  the  hand 
of  the  master  ;  others,  as  those  of  the  United  States,  which  tol- 
erate slavery,  may  treat  the  slave  as  a  person,  when  the  master 
takes  his  life  ;  while  in  others,  the  law  may  recognize  a  right  of 
the  slave  to  be  protected  from  cruel  treatment.  In  other  words, 
the  status  of  slavery  embraces  every  condition,  from  that  in  which 
the  slave  is  known  to  the  law  simply  as  a  chattel,  with  no  civil 
rights,  to  that  in  which  he  is  recognized  as  a  person  for  all  pur- 
poses, save  the  compulsory  power  of  directing  and  receiving  the 
fruits  of  his  labor.  Which  of  these  conditions  shall  atte..d  the 
status  of  slavery,  must  depend  on  the  municipal  law  which  creates 
and  upholds  it. 

"  And  not  only  must  the  status  of  slavery  be  created  and 
measured  by  municipal  law,  but  the  rights,  powers,  and  obliga- 


MR,  JUSTICE    CURTIS'    OPINION.  551 

tions,  which  grow  out  of  that  status,  must  be  defined,  protected, 
and  enforced,  by  such  laws.  The  Hability  of  the  master  for  the 
torts  and  crimes  of  his  slave,  and  of  third  persons  for  assaulting 
or  injuring,  or  harboring  or  kidnapping  him,  the  forms  and  modes 
of  emancipation  and  sale,  their  subjection  to  the  debts  of  the 
master,  succession  by  death  of  the  master,  suits  for  freedom,  the 
capacity  of  the  slave  to  be  party  to  a  suit,  or  to  be  a  witness, 
with  such  police  regulations  as  have  existed  in  all  civilized  States 
where  slavery  has  been  tolerated,  are  among  the  subjects  upon 
which  municipal  legislation  becomes  necessary  when  slavery  is 
introduced. 

"  Is  it  conceivable  that  the  Constitution  has  conferred  the 
right  on  every  citizen  to  become  a  resident  on  the  Territory  of 
the  United  States  with  his  slaves,  and  there  to  hold  them  as 
such,  but  has  neither  made  nor  provided  for  any  municipal  regu- 
lations which  are  essential  to  the  existence  of  slavery  ? 

"  Is  it  not  more  rational  to  conclude  that  they  who  framed 
and  adopted  the  Constitution  were  aware  that  persons  held  to 
service  under  the  laws  of  a  State  are  property  only  to  the  extent 
and  under  the  conditions  fixed  by  those  laws  ;  that  they  must 
cease  to  be  available  as  property,  when  their  owners  voluntarily 
place  them  permanently  within  another  jurisdiction,  where  no 
municipal  laws  on  the  subject  of  slavery  exist  ;  and  that,  being 
aware  of  these  principles,  and  having  said  nothing  to  interfere 
with  or  displace  them,  or  to  compel  Congress  to  legislate  in  any 
particular  manner  on  the  subject,  and  having  empowered  Con- 
gress to  make  all  needful  rules  and  regulations  respecting  the 
territory  of  the  United  States,  it  was  their  intention  to  leave  to 
the  discretion  of  Congress  what  regulations,  if  any,  should  be 
made  concerning  slavery  therein  ?  Moreover,  if  the  right  exists, 
what  are  its  limits,  and  what  are  its  conditions  ?  If  citizens  of 
the  United  States  have  the  right  to  take  their  slaves  to  a  Terri- 
tory, ai.1  hold  them  there  as  slaves,  without  regard  to  the  laws 
of  the  Territory,  I  suppose  this  right  is  not  to  be  restricted  to 
the  citizens  of  slaveholding  States.  A  citizen  of  a  State  which 
does  not  tolerate  slavery  can  hardly  be  denied  the  power  of  doing 
the  same  thing.     And  what  law  of  slavery  does  either  take  with 


552  MR.  JUSTICE   CURTIS'    OPINION. 

him  to  tl)e  Territory  ?  If  it  be  said  to  be  those  laws  respecting 
slavery  which  existed  in  the  particular  State  from  which  each 
slave  last  came,  what  an  anomaly  is  this  ?  Where  else  can  we 
find,  under  the  law  of  any  civilized  country,  the  power  to  intro- 
duce and  permanently  continue  diverse  systems  of  foreign  muni- 
cipal law,  for  holding  persons  in  slavery  ?  I  say,  not  merely  to 
introduce,  but  permanently  to  continue,  these  anomalies.  For 
the  oflFspring  of  the  female  must  be  governed  by  the  foreign  mu- 
nicipal laws  to  which  the  motlier  was  subject ;  and  when  any 
slave  is  sold  or  passes  by  succession  on  the  death  of  the  owner, 
there  must  pass  with  him,  by  a  species  of  subrogation,  and  as  a 
kind  of  unknown  jus  in  re,  the  foreign  municipal  laws  which  con- 
stituted, regulated,  and  preserved  the  status  of  the  slave  before 
his  exportation.  Whatever  theoretical  importance  may  be  now 
supposed  to  belong  to  the  maintenance  of  such  a  right,  I  feel  a 
perfect  conviction  that  it  would,  if  ever  tried,  prove  to  be  as  im- 
practicable in  fact,  as  it  is,  in  my  judgment,  monstrous  in  theory. 
"  I  consider  the  assumption  which  lies  at  the  basis  of  this 
theory  to  be  unsound ;  not  in  its  just  sense,  and  when  properly 
understood,  but  in  the  sense  which  has  been  attached  to  it.  That 
assumption  is,  that  the  territory  ceded  by  France  was  acquired 
for  the  equal  benefit  of  all  the  citizens  of  the  United  States.  I 
agree  to  the  position.  But  it  was  acquired  for  their  benefit  in 
their  collective,  not  their  individual,  capacities.  It  was  acquired 
for  their  benefit,  as  an  organized  political  society,  subsisting  as 
'  the  people  of  the  United  States,'  under  the  Constitution  of  the 
United  States  ;  to  be  administered  justly  and  impartially,  and 
as  nearly  as  possible  for  the  equal  benefit  of  every  individual 
citizen,  according  to  the  best  judgment  and  discretion  of  the 
Congress ;  to  whose  power,  as  the  Legislature  of  the  nation  which 
acquired  it,  the  people  of  the  United  States  have  committed  its 
administration.  Whatever  individual  claims  may  be  founded  on 
local  circumstances,  or  sectional  difierences  of  condition,  cannot, 
in  my  opinion,  be  recognized  in  this  court,  without  arrogating  to 
the  judicial  branch  of  the  Government  powers  not  committed  to 
it ;  and  which,  with  all  the  unaffected  respect  I  feel  for  it,  when 
acting  in  its  proper  sphere,  I  do  not  think  it  fitted  to  wield. 


SLAVEKY    IN    THE    TERRITORIES.  553 

"  Nor,  in  my  judgment,  will  the  position,  that  a  prohibition 
to  bring  slaves  into  a  Territory  deprives  any  one  of  his  property 
without  due  process  of  law,  bear  examination. 

"  It  must  be  remen)bercd  that  this  restriction  on  the  legis- 
lative power  is  not  peculiar  to  the  Constitution  of  the  United 
States ;  it  was  borrowed  from  Magna  Gharta  ;  was  brought  to 
America  by  our  ancestors,  as  part  of  their  inherited  liberties,  and 
has  existed  in  all  the  States,  usually  in  the  very  words  of  the 
great  charter.  It  existed  in  every  political  community  in  Ame- 
rica in  1787,  when  the  ordinance  prohibiting  slavery  north  and 
west  of  the  Ohio  was  passed. 

"  And  if  a  prohibition  of  slavery  in  a  Territory  in  1820  vio- 
lated this  principle  of  Magna  Charta,  the  ordinance  of  1787  also 
violated  it  ;  and  what  power  had,  I  do  not  say  the  Congress  of 
the  Confederation  alone,  but  the  Legislature  of  Virginia,  or  the 
Legislature  of  an)''  or  all  the  States  of  the  Confederacy,  to  consent 
to  such  a  violation  ?  The  people  of  the  States  had  conferred  no 
such  power.  I  think  I  may  at  least  say,  if  the  Congress  did  then 
violate  Magna  Charta  by  the  ordinance,  no  one  discovered  that 
violation.  Besides,  if  the  prohibition  upon  all  persons,  citizens 
as  well  as  others,  to  bring  slaves  into  a  Territory,  and  a  declara- 
tion that  if  brought  they  shall  be  free,  deprives  citizens  of  their 
property  without  due  process  of  law,  what  shall  we  say  of  the  le- 
gislation of  many  of  the  slave-holding  States  which  have  enacted 
the  same  prohibition  ?  As  early  as  October,  1778,  a  law  passed 
in  Virginia,  that  thereafter  no  slave  should  be  imported  into  that 
Commonwealth  by  sea  or  by  land,  and  that  every  slave  who 
should  be  imported  should  become  free.  A  citizen  of  Virginia 
purchased,  in  Maryland,  a  slave  who  belonged  to  another  citizen 
of  Virginia,  and  removed  with  the  slave  to  Virginia.  The  slave 
sued  for  her  freedom,  and  recovered  it ;  as  may  be  seen  in  Wilson 
V.  Isabel,  (5  Call's  K.  425.)  See  also  Hunter  v.  Hulsher,  (1 
Leigh,  172  ;)  and  a  similar  law  has  been  recognized  as  valid  in 
Maryland,  in  Stewart  v.  Oaks,  (5  Har.  and  John.  107.)  I  am 
not  aware  that  such  laws,  though  they  exist  in  many  States,  were 
ever  supposed  to  be  in  conflict  with  the  principle  of  Magna 
Charta  incorporated  into  the  State  Constitutions.     It  was  cer- 


554  POLITICAL   DOCTRINES 

tainly  understood  by  the  Convention  which  framed  the  Constitu- 
tion, and  has  been  so  understood  ever  since,  that,  under  the 
power  to  regulate  commerce.  Congress  could  prohibit  the  impor- 
tation of  slaves  ;  and  the  exercise  of  the  power  was  restrained  till 
1808.  A  citizen  of  the  United  States  owns  slaves  in  Cuba,  and 
brings  them  to  the  United  States,  where  they  are  set  free  by  the 
legislation  of  Congress.  Does  this  legislation  deprive  him  of  his 
property  without  due  process  of  law  ?  If  so,  what  becomes  of 
the  laws  prohibiting  the  slave  trade  ?  If  not,  how  can  a  similar 
regulation  respecting  a  Territory  violate  the  fifth  amendment  of 
the  Constitution  ?  " 

§  502.  The  proposition,  that  the  several  States  of  the  Union, 
or  their  citizens,  are  equally  entitled  to  the  use  and  benefit  of  the 
territory  belonging  to  the  United  States  ;  that  the  maintenance 
of  slavery  in  every  part  of  such  territory  is  essential  to  enable 
the  slave-holding  States,  or  their  citizens,  to  enjoy  equally  with 
the  non-slaveholding  States,  or  their  citizens,  that  use  and  benefit 
of  the  territory  ;  and  that,  therefore,  Congress  had  no  j^ower  to 
abolish  or  prohibit  slavery  in  the  Louisiana  Territory  is,  as  main- 
tained by  some  of  the  Justices  in  this  case,  a  judicial  or  legal 
rule,  or  a  rule  of  law,  one  by  which  the  rights  and  obligations  of 
natural  persons  may  be  coercively  maintained  and  judicially  de- 
termined. And  it  is  equally  so  whether  the  right  which  is  as- 
serted by  the  denial  of  the  power  is  one  vested  in  the  individual 
citizens  of  the  slave-holding  States,  or  one  vested  in  the  slave- 
holding  States  as  political  persons  ;  that  is,  whether  the  principle 
is  applied  as  public  or  as  private  law.  ^  For  in  either  case  the 
obligations  which  are  enforced,  as  correlative  to  the  right  which 
is  maintained,  are  obligations  of  private  persons. 

§  503.  As  such  judicial  or  juridical  rule,  the  proposition 
should  be  distinguished  from  one  which  may  be  expressed  in  very 
similar  terms.  This  is,  that  tbe  several  States,  or  their  citizens, 
are  equally  entitled  to  the  use  and  benefit  of  the  territory  be- 
longing to  the  United  States  ;  that  the  powers  held  by  the  na- 
tional Government  in  respect  to  this  territory  are  held  under 
the  obligation  or  trust  of  securing  to  the  several  States,  or  their 

»  Ante,  §  25. 


AS   TO    THE   TERRITORIES.  555 

citizens,  this  equality ;  that  the  maintenance  of  slavery  in  every 
part  of  such  territory  is  essential  to  enable  the  slave-holding 
States,  or  their  citizens,  to  enjoy  equally  with  the  non-slave- 
holding  States,  or  their  citizens,  that  use  and  benefit  of  the  ter- 
ritory ;  and  that,  therefore,  Congress  has  no  rigid  to  abolish  or 
prohibit  slavery  in  any  of  the  Territories. 

For  whether  the  States,  as  political  persons,  or  the  individual 
citizens  of  the  several  States  are  the  persons  thus  supposed  to  be 
equally  entitled  to  the  use  and  benefit  of  the  territory,  this  pro- 
position is  only  a  political  rule  ;  or,  negatively,  it  is  not  asserted 
as  a  rule  of  law,  or  one  by  which  the  rights  and  obligations  of 
private  persons  are  coercively  maintained  and  judicially  deter- 
mined. The  obligation,  correlative  to  the  right  asserted,  is  one 
on  the  part  of  the  Government  as  a  political  agent,  and  beyond 
the  reach  of  the  judiciary,  which  is  a  part  of  the  same  Govern- 
ment. 

§  504.  It  may  be  doubted  whether  a  majority  of  those  mem- 
bers of  Congress,  or  persons  in  other  spheres  of  public  action,  who 
have  contended  against  the  legislative  prohibition  of  slavery  in 
the  Territories,  have  maintained  the  above  projiosition  as  a  rule 
of  law  judicially  applicable,  or  as  being  other  than  a  political 
principle.  The  late  Mr.  Calhoun,  who  is  well  known  to  have  in- 
sisted on  the  strictest  construction  of  all  powers  of  the  national 
Government,  when  the  question  was  of  their  exercise  for  the  re- 
striction of  slavery,  may  on  many  occasions  have  advocated 
propositions  which,  as  now  read,  may  be  understood  to  assert  the 
doctrine  as  a  rule  of  public  law  and  one  judicially  cognizable.' 

'  See  Calhoun's  Works,  IV.,  339-349,  the  resolutions  presented  by  him  in  the 
Senate  of  the  U.  S.,  Feb.  19,  1847,  and  Mr.  Calhoun's  remarks  on  that  occa- 
sion. Ibid.  535—541,  Remarks  on  the  proposition  to  establish  territorial  Governments 
in  New  Mexico  and  California,  Feb.  24,  1849.  Ibid.  562-565,  in  his  speech,  March  4, 
1850,  where  Mr.  Calhoun  asserts  to  the  fullest  extent  the  power  of  Congress  over 
slavery  in  the  Territories,  while  claiming,  as  a  constitutional  right,  its  exercise  in  sus- 
taining slavery.  Compare  remarks  on  Mr.  Calhoun's  position  in  this  question  and  on 
the  distinction  of  the  doctrine,  as  a  political  rule  or  as  a  legal  one,  in  the  review  of 
Dred  Scott's  case,  in  Monthly  Law  Reporter,  April,  1857,  p.  35.  The  resolutions  of 
Feb.  1847,  were  as  follows: 

"  Resolved,  That  the  Territories  of  the  United  States  belong  to  the  several  States 
composing  this  Union,  and  are  held  by  them  as  their  joint  and  common  property. 

"  Resolved,  That  Congress,  as  the  joint  agent  and  representative  of  the  States  of 
this  Union,  has  no  right  to  make  anj'  law,  or  do  any  act  whatever,  that  sliall  directly, 
or  by  its  efifects,  make  any  discrimination  between  the  States  of  this  Union,  by  which 


556  POLITICAL    DOCTRINE    DISTINGUISHED 

But  Mr.  Calhoun  appears  to  have  asserted  the  doctrine  as  a  po- 
litical rule  only.  Such  an  interpretation  of  his  language  would 
not  be  inconsistent  with  the  doctrine  of  private  law  which  he  is 
believed  to  have  held,  that  slavery  is  legal,  or  judicially  cognizable, 
in  all  territory  belonging  to  the  United  States,  independently  of 
positive  legislation  ;  that  is,  even  when  no  statute  has  been  enacted 
on  the  subject  by  the  possessors  of  sovereign  power  in  and  for  the 
territory,  (whoever  they  may  be,)  and  that  it  will  continue  to  be 
lawful  there,  until  prohibited  by  such  statute.'  This  question, 
which  is  purely  one  of  positive  law,  that  is,  of  law  applicable  by 
judicial  tribunals,  is  to  be  examined  in  a  later  portion  of  this 
treatise. 

§  505.  On  page  448  of  the  report,  Chief  Justice  Taney  says 
of  the  powers  of  the  Government  in  this  respect,  "Whatever  it 
acquires  it  acquires  for  the  benefit  of  the  people  of  the  several 
States  who  created  it.  It  is  their  trustee  acting  for  them,  and 
charged  with  the  duty  of  promoting  the  interest  of  the  whole 
people  of  the  Union  in  the  exercise  of  the  powers  specifically 
granted."  And  on  the  same  page,  "  it  [the  Territory]  was  ac- 
quired by  the  General  Government  as  the  representative  and 
trustee  of  the  people  of  the  United  States,  and  it  must,  therefore, 
be  held  in  that  character  for  their  common  and  equal  benefit,  for 
it  was  the  people  of  the  several  States,  acting  through  their  agent 
and  representative,  the  Federal  Government,  who,  in  fiict,  ac- 
quired the  Territory  in  question,  and  the  Government  holds  it 

any  of  them  shall  be  deprived  of  its  full  and  equal  right  in  any  territory  of  the  United 
States,  acquired  or  to  be  acquired. 

Jiesolved,  That  the  enactment  of  any  law,  which  should  directly,  or  by  its  effects, 
deprive  the  citizens  of  any  of  the  States  of  this  Union  from  immigrating,  with  their 
property,  into  any  of  the  territories  of  the  United  States,  will  make  such  discrimination, 
and  would,  therefore,  be  a  violation  of  the  Constitution  and  the  rights  of  the  States 
from  which  such  citizens  emigrated,  and  in  derogation  of  that  perfect  equality  which 
belongs  to  them  as  members  of  this  Union,  and  would  tend  directly  to  subvert  the 
Union  itself. 

"  Jiesolved,  That  it  is  a  fundamental  principle  in  our  political  creed,  that  a  people 
in  formmg  a  Constitution  have  the  unconditional  right  to  form  and  adopt  the  govern- 
ment which  they  may  think  best  calculated  to  secure  their  liberty,  prosperity,  and 
happiness ;  and  that,  in  conformity  thereto,  no  other  condition  is  imposed  by  the 
Federal  Constitution  on  a  State  in  order  to  be  admitted  into  this  Union,  except  that 
its  constitution  shall  be  republican,  and  that  the  imposition  of  any  other  by  Congress 
would  not  only  be  in  violation  of  the  Constitution,  but  in  direct  conflict  with  the  prin- 
ciple upon  which  our  political  system  rests." 

'  Ante,  p.  423,  note. 


FROM    THE   JUDICIAL    RULE.  557 

for  their  common  use  until  it  shall  be  associated  with  the  other 
States  as  a  member  of  the  Union." 

But  it  would  appear  that  so  far  as  this  doctrine  of  the  equality 
of  the  States  or  of  the  people  of  the  States  in  respect  to  the  use 
and  benefit  of  the  Territory  was  recognized  by  the  Chief  Justice, 
and  by  Justices  Wayne  and  Grier  affirming  the  opinion  of  the 
court,  that  they  agreed  with  Justices  McLean  and  Curtis,  in 
considering  it  as  a  political  principle  only  ;  a  rule  to  govern  Con- 
gress in  the  exercise  of  the  power  of  determining  all  rights  and 
obligations  of  private  persons  in  the  Territory  where  not  limited 
by  provisions  in  the  Constitution  of  the  nature  of  a  hill  of  rights 
operating  as  private  law.  As  to  the  extent  of  the  guarantee  of 
private  property  in  this  part  of  the  Constitution,  there  was  a  dif- 
ference of  opinion  ;  but  no  one  of  these  members  of  the  Court 
appears  to  have  taken  the  principle  either  as  a  rule  determining 
the  location  of  juridical  power,  in  respect  to  the  status  or  con- 
dition of  private  persons,  or  as  one  which  could  in  itself  enable 
judicial  tribunals  to  determine  any  rights  or  obligations  of  private 
persons. 

Justices  Daniel,  Campbell,  and  Catron,  on  the  contrary,  all, 
with  more  or  less  consistency,  recognize  the  proposition  as  a  ju- 
ridical rule,  one  by  which  the  status  of  persons  in  the  Territories 
may  be  judicially  determined. 

Judge  Daniel,  on  page  489  of  the  report,  (ante,  p.  532,)  re- 
gards the  right  asserted,  in  denying  the  power  of  Congress,  as  one 
belonging  to  the  individual  citizens  of  the  slave-holding  States  as 
those  who,  with  the  individual  citizens  of  the  non-slaveholding 
States,  are  equally  entitled  to  whatever  use  or  benefit  private 
persons  may  have  of  the  territory.  Judge  Daniel  therefore  ap- 
plies the  rule  as  private  law. 

Judge  Campbell,  on  the  other  hand,  regards  the  right  thus 
vindicated  as  one  belonging  to  the  States  in  their  political  per- 
sonality ;  or,  taking  the  principle  as  a  rule  of  public  law,  holds 
that  the  rights  and  obligations  of  natural  persons  residing  in  the 
Territories,  which  are  incident  to  personal  condition  or  status,  are 
not  dependent  on  the  national  powers  or  those  vested  in  the  fed- 
eral Government,  but  depend  upon  the  juridical  will  of  some 


558  SLAVERY   IN    THE    TERRITORIES, 

other  possessors  of  sovereign  power,  for  whom  that  Government 
is,  in  the  Territory,  only  the  agent  or  trustee. 

Judge  Catron  also  spoke  of  the  right  vindicated  against  the 
power  of  Congress  as  the  right  of  the  States,  asserting  that  the 
slave-holder's  right  is  protected  in  virtue  of  the  equality  of  his 
State,  (p.  527  of  the  report,  ante,  p.  540.)  At  the  same  time 
Judge  Catron  seems  to  rely  on  the  protective  effect  of  the  treaty 
with  France  as  creating  an  exception  to  the  ordinary  powers  of 
Congress  in  respect  to  status  of  persons  in  the  Territory,  and  to 
recognize  Congress  as  the  only  possessor  of  juridical  power  in 
such  Territory. 

§  506.  The  opinions  of  the  several  justices  in  Dred  Scott's 
case,  on  the  question  of  the  constitutionality  of  the  act  of  Con- 
gress of  1820  in  prohibiting  slavery,  have  been  here  cited  under 
the  general  inquiry  whether  State  legislatures,  or  (assuming  that 
the  national  Government  has  in  the  Territories  the  powers  ordi- 
narily held  by  a  State  Government)  Congress  legislating  for 
the  Territories,  &c.,  has  the  power  to  prohibit  or  abolish  negro 
slavery.' 

It  appears  that  of  the  six  members  of  the  Court  who  denied 
the  constitutionality  of  the  Act,  four  based  that  denial  on  the 
ground  that  slaves  are  property,  in  view  of  the  Constitution  op- 
erating as  a  bill  of  rights,  and  that  the  act  of  Congress  was  an 
infringement  of  that  guarantee. 

Of  these  members  of  the  Court,  Chief  Justice  Taney,  and 
Justices  Wayne  and  Grier  adopting  the  opinion  written  by  the 
Chief  Justice,  held  that  slaves  are  property  by  the  national  law, 
because  rights  of  property  in  respect  to  them  are  specially  recog- 
nized in  the  written  Constitution,  and  also  because  slaves  are 
property  by  common  law,  or  an  unwritten  jurisprudence  embraced 
in  the  national  jurisprudence,  independently  of  any  specific  re- 
cognition of  slavery  in  the  written  Constitution. 

Mr.  Justice  Daniel,  in  maintaining  the  protection  of  slavery 
in  the  Territories  under  the  constitutional  guarantee  of  private 
property,  appears  to  have  relied  solely  on  the  clauses  of  the  written 

'  Ante,  §§  488,  489. 


DRED    SCOTT    V.    SANDFORD.  559 

Constitution  referring  to  slaves,  as  containing  the  recognition  of 
slaves,  as  property,  by  the  national  law. 

Mr.  Justice  Campbell  denied  the  power  of  Congress  on  the 
ground  that  the  relation  of  master  and  slave  in  the  Territories 
depends  upon  some  other  possessor  of  legislative  or  juridical  power. 
And  Judge  Daniel  seems  to  have  been  with  Judge  Campbell  in 
this  doctrine,  to  some  extent, 

Mr.  Justice  Catron's  assertion  of  the  exclusive  power  of  Con- 
gress in  reference  to  the  Territory  and  his  distinct  reliance  on 
the  treaty  of  cession,  as  limiting  the  power  in  respect  to  Louisiana, 
prevent  the  inference  that  he  agreed  in  either  of  the  doctrines 
above  stated  ;  however  much  his  language,  in  some  parts  of  his 
opinion,  may  accord  with  one  or  the  other. 

Three  distinct  grounds  of  denying  the  power  of  Congress  were 
therefore  relied  on  in  this  case  ;  but  no  one  of  these  was  sup- 
ported by  more  than  four  of  the  nine  members  of  the  Court.' 

Independently  of  the  question  whether  the  opinion  on  the  con- 
stitutionality of  the  act  of  Congress  was  extrajudicial,  if  it  is  the 
reason  of  a  decision,  or  the  ground  on  which  it  is  made,  which  is 
authoritative,'^  this  diversity  of  opinion,  as  to  the  governing  prin- 


'  In  case  of  a  majority  of  votes  in  Kansas  Territory  for  ConstiMion  with  no  slav- 
ery, the  (Lecompton)  constitution  to  be  adopted  for  the  State  by  that  vote  under  the 
organic  law  coutaiiitd  this  clause  :  "  no  slavery  shall  exist  in  the  State  of  Kansas,  ex- 
cept that  the  right  of  property  in  slaves  now  in  the  Temtory  sliall  in  no  manner  be 
interfered  with."  Alluding  to  this,  President  Buchanan,  in  his  message,  Dec.  8th, 
1857,  observes,  "  These  slaves  were  brought  into  the  Territory  under  the  Constitution 
of  the  United  States,  and  are  now  the  property  of  their  masters.  This  point  has  at 
length  been  finally  decided  by  the  highest  judicial  tribunal  of  the  country,  and  upon 
this  plain  principle,  that  when  a  confederacy  of  sovereign  States  acquire  a  new  terri- 
tory- at  their  joint  expense,  both  equality  and  justice  demand  that  the  citizens  of  one 
and  all  of  them  have  the  right  to  take  into  it  whatever  is  recognized  as  property  by 
the  common  constitution." 

The  decision  in  Dred  Scott's  case  was,  that  slavery  had  always  been  sanctioned  in 
that  Territory  by  the  local  law ;  Congress  having  had  no  power  to  alter  the  local  law 
in  that  respect.  From  the  President's  reference  to  the  case,  it  would  be  thought  that 
the  court  had  decided  that  slaves  carried  into  any  Territory  of  the  U.  S.  are  slaves 
still.  That  doctrine  may  be  a  necessary  conclusion  from  a  denial  of  the  power  in 
Congress  on  the  ground  that  slaves  are  "  property  by  the  common  constitution,"  or  on 
the  ground  that  the  equality  of  the  States  or  their  citizens  in  the  use  and  benefit  of  the 
Territories  forbids  the  abolition  of  slavery.  But  neither  of  these  two  grounds  was 
maintained  by  a  majority  of  the  Court.  They  are  entirely  distinct,  and  though  some 
passages  in  Judge  Catron's  opinion  are  very  similar  in  language,  no  member  of  the 
Court  connected  the  two  doctrines  as  the  President  has  done  in  this  instance. 

^  Ram  on  Legal  Judgment,  pp.  19-23. 

36 


560  ARGUMENT    ON    THE    CONSTITUTION. 

ciple,  should  be  taken  into  account  in  estimating  the  legal  force 
of  the  decision. 

§  507.  It  has  frequently  been  asserted  that  in  and  by  those 
clauses  in  the  Constitution  which  recognize  some  persons  as  not 
being  free  by  the  laws  of  the  States  wherein  they  are  found,  or 
from  which  they  may  have  escaped,'  the  rights  of  other  persons, 
in  respect  to  them,  under  the  State  law,  are  thereby  maintained 
by  the  national  law  as  rights  in  respect  to  property  as  distin- 
guished from  persons. 

The  process  of  reasoning  which  should  support  such  a  con- 
clusion has  not  been  stated  in  asserting  the  proposition.  It 
maybe  supposed  to  resemble  the  following.  The  Constitution 
here  recognizes  rights  in  respect  to  natural  persons  which  exist 
under  a  State  law.  The  Constitution  and  the  State  law  recog- 
nize here  a  right  in  respect  to  the  same  object.*  By  the  State 
law  these  natural  persons  may  he  property,  and  not  legal  persons. 
Now  if  the  State  law  recognizes  the  object  of  the  right  as  prop- 
erty or  a  chattel,  the  Constitution  in  recognizing  the  same  ob- 
ject of  the  right,  must  recognize  the  natural  jjerson  as  that  ob- 
ject which  the  State  law  recognizes  ;  but  that  is  a  chattel  or 
property.  Therefore, — conclusion,  that  the  Constituticn  recog- 
nizes the  object  of  the  right  as  a  chattel,  and,  in  saying  persons, 
means  property  as  distinguished  from  persons.  The  argument 
rests  on  the  fallacy  that  it  is  impossible  fur  one  juridical  person 
to  recognize  a  right,  in  respect  to  a  natural  person  as  its  object, 
which  is  created  by  another  juridical  person,  without  recognizing 
him  as  a  chattel,  if  so  considered  by  that  other. 

'  The  Constitution  contains  these  clauses.  Art.  I.  sec.  2.  "  Representatives  and 
direct  taxes  shall  be  apportioned  among  the  several  States  which  may  be  included 
■within  this  Union,  according  to  their  respective  numbers,  which  shall  be  determined 
by  adding  to  the  whole  number  of  free  persons,  inclnding  those  bound  to  service  for  a 
term  of  years,  and  excluding  Indians  not  taxed,  three-fifths  of  all  other  persons. 

Sec.  9.  "  The  migration  or  importation  of  such  persons  as  any  of  the  States  now 
existing  shall  think  proper  to  admit,  shall  not  be  prohibited  by  the  Congress  prior  to 
the  year  one  thousand  eight  hundred  and  eight;  but  a  tax  or  duty  may  be  imposed  on 
such  importation,  not  exceeding  ten  dollars  for  each  person." 

Art.  rV.  sec.  2.  "  No  person  held  to  service  or  labor  in  one  State,  under  the  laws 
thereof,  escaping  into  another,  shall  in  consequence  of  any  law  or  regulation  therein, 
be  discharged  from  such  service  or  lab:  r,  but  shall  be  delivered  up  on  claim  of  the 
party  to  whom  such  service  or  labor  may  be  due." 

'^  Ante,  §  24. 


CONSTITUTIONAL    RECOGNITION.  561 

§  508.  In  the  proposition  above  noticed,  it  is  merely  asserted 
that  the  slave  is  recognized,  by  the  national  juridical  authority, 
as  propert}'',  while  he  is  subject  to  some  State  law,  either  as 
being  within  its  territor)'^,  or  a  fugitive  from  it.'  It  may  be 
doubted  whether,  before  this  opinion  of  the  Chief  Justice,  sup- 
ported by  Justices  Wayne,  Grier,  and  Daniel,  it  has  ever  been 
maintained  by  any  persons,  that  not  only,  hy  these  clauses,  are 
slaves  recognized  as  property  within  the  State  jurisdiction  and 
when  fugitive,  but  also,  in  these  clauses,  they  are,  by  the  juridical 
action  of  the  nation,  recognized  as  property  throughout  the  entire 
dominion  of  the  United  States.  No  argument  has  been  put 
forth  as  leading  to  such  a  conclusion.  It  seems  to  be  founded 
on  an  assumption  that  there  is  no  distinction  between  rights 
supported  by  a  law  of  national  a^ithority  and  rights  supported  by 
law  having  national  extent ;  that  if  the  national  authority  sup- 
ports the  master's  right,  in  any  case,  as  a  right  of  property,  the 
national  law  supports  it  as  a  right  of  property  everywhere.  The 
doctrine  requires,  apparently,  the  admission  of  two  fallacies. 

This  question  of  the  proper  interpretation  of  these  clauses  of 
the  Constitution,  or  whether,  in  them,  slaves  are  recognized  as 
persons  or  as  property,  will  be  more  fully  considered  in  another 
portion  of  this  treatise  as  a  question  of  the  g'wast-international 
law  of  the  United  States,  or  that  law  which  is  national  in  its  au- 
thority and  international  in  its  effect  as  between  the  States,  and 
by  the  character  of  the  persons  whose  rights  and  obligations  it 
determines. 

§  509.  But  in  the  first  part  of  the  extract  from  the  opinion 
delivered  by  the  Chief  Justice,  the  broader  ground  seems  to  be 
relied  on  that  the  slave-holder's  right  comes  within  the  guarantee, 
because  there  is  no  "  difierence  between  property  in  a  slave  and 

'  So  even  Judge  Story,  inPrigg's  case,  16  Peters,  G13,  holding  that  by  tlie  operation 
of  the  constitutioual  provision  the  fugitive  slave  was  still  in  the  same  condition  he  had 
been  in,  in  the  State  from  which  he  had  escaped,  and,  therefore,  iniglit  be  seized  by  his 
owner  and  carried  back  without  public  authority  notwithstanding  it  was  declared  in 
the  same  provision  that  the  fugitive  person  should  be  delivered  up  on  claim,  and  Judge 
Baldwin,  in  Groves  v.  Slaughter,  1.5  Peters,  515,  liolding  that  skives  "  being  property, 
by  the  law  of  any  State,  the  owners  are  protected  from  any  violation  of  the  riglits  of 
property  by  Congress  under  the  fifth  Amendment  of  the  Constitution,"  only  claim 
that  while  their  condition  is  determined  by  iSt.a(e  authority  to  be  property,  the  national 
Government  must  also  recognize  them  as  property. 


562  LEGISLATIVE    CRITERION, 

other  property  ;"  or,  perhaps,  the  doctrine  held  may  be  tlius 
expressed  :  that  there  is  no  distinction  in  law,  or  in  the  juris- 
prudence which  may  be  applied  by  the  national  judiciary,  be- 
tween rights  of  'property  in  respect  to  slaves,  and,  rights  in 
respect  to  slaves  as  property. 

§  510.  In  any  inquiry  into  the  extent  of  terras  used  in  the 
definition  of  chartered  rights,  (i.  e.,  rights  which  have  long  been 
secured  by  written  charters  or  bills  of  rights,)  it  is  to  be  noticed 
that  whether  the  judicial  function  is  relatively  superior,  or  co-or- 
dinate, or  subordinate,  the  practice  of  the  legislating  bodies, 
whose  power  in  this  respect  is  to  be  ascertained,  and  that  of 
their  actual  predecessors,  is  the  admitted  ordinary  exponent 
of  the  rule  which  is  to  determine  the  question.  For,  since  in 
the  very  great  majority  of  instances  the  action  of  the  judiciary 
follows  that  of  the  legislature,  if  any  conflict  should  arise  as  to 
the  extent  of  the  legislative  function,  a  public  customary  law 
known  by  the  continued,  before-undisputed  exercise  of  the  leg- 
islative power,  is  all  that  can  be  appealed  to. 

Now  the  legislative  exposition  of  the  law,  which  is  given  in 
asserting  legislative  power  to  create,  modify,  or  terminate  the 
right  of  ownership  in  respect  to  natural  persons  has,  in  the  his- 
tory of  the  world,  been  constant,  concurrent,  and  continued, 
from  the  "  time  whereof  the  memory  of  man  runneth  not  to  the 
contrary  ;"  and  the  same  power,  as  exercised  solely  with  reference 
to  the  slavery  of  negroes,  Indians,  and  others  not  of  Caucasian 
or  European  race,  has  been  illustrated  in  the  legislative  history 
of  the  British  empire  and  of  the  colonies,  as  presented  in  the 
former  part  of  this  work,  in  the  claims  of  the  revolting  colonies 
against  parliament,'  and  in  the  history  of  local  law  in  all  the 
States,  both  those  wherein  negro  slavery  has  been  abolished  and 
those  wherein  it  has  continued.  As  will  be  more  particularly 
shown  hereafter  in  that  connection,  the  entire  power  over 
slavery  of  persons  not  of  European  or  white  race,  to  establish, 
modify,  or  abolish  it,  has  in  most  of  the  States  been  assumed 
by  the  constituted  legislatures,  without  question  from  the  ju- 
diciary ;  unless  specific  provisions  limiting  the  legislature  in  this 

'  Ante^  p.  225,  note  4. 


CRITERION    OF    PROPERTY. 


563 


respect  have,  as  in  some  of  the  southern  States,  been  introduced 
into  the  written  Constitution.  It  appears  never  to  have  been  ju- 
dicially doubted,  before  this  decision,  that  the  entire  power  ovei 
the  subject  was  in  the  constituted  legislatures  ;  in  that  of  the 
State  dovernraents  for  the  States,  and  in  Congress  for  the  Ter- 
ritories, &c.,  unrestrained  by  common  law  or  by  bills  of  rights. 
And,  until  the  Act  of  Congress  of  May  30,  1854,  popularly 
known  as  the  Act  repealing  the  Missouri  Compromise,'^  the 
power  had  been  exercised  without  question  by  Congress  legis- 
lating for  the  Territories. 

§  511.  The  Chief  Justice,  in  that  part  of  the  Opinion  which 
has  been  referred  to,  notices  the  fact  that  "  the  laws  and  usages 
of  nations  and  the  writings  of  eminent  jurists  upon  the  relation 
of  master  and  slave,  and  their  mutual  rights  and  duties  and  the 
powers  which   governments   may   exercise   over   it,   have   been 

'  Entitled,  An  Act  to  organize  the  Territories  of  Nebraska  and  Kansas.  In  sec  U, 
it  is  provided'  "That  the  Constitvition  and  all  laws  of  the  United  States,  which  are 
not  locnUv  inapplicable,  shall  have  the  same  force  and  effect  within  the  said  Territory 
of  Nebraska  as  elsewhere  within  the  United  States  ;  except  the  eighth  section  of  the 
act  preparatory  to  the  admission  of  Missouri  into  the  Union,  approved  March  sixth, 
ei<^hteen  hundred  and  twenty,  which  being  inconsistent  with  the  principle  of  non-m- 
tervention  by  Congress  with  slavery  in  the  States  and  Temtories,  as  recognized  hj 
the  legislation  of ''eighteen  hundred  and  fifty,  commonly  called  the  Compromise 
Measures,  is  hereby  declared  inoperative  and  void;  it  being  the  true  intent  and  nican- 
inc  of  this  act  not  to  legislate  slavery  into  any  Territory  or  State,  nor  to  exclude 
it  therefrom,  but  to  leave  the  people  thereof  perfectly  free  to  form  and  regulate  their 
domestic  institutions  in  their  own  way,  subject  only  to  the  Constitution  of  the  United 
States,  Provided,  that  nothing  herein  contained  shall  be  construed  to  revive  or  put  in 
force  any  law  or  regulation  which  may  have  existed  prior  to  the  act  of  6th  March, 
eighteen  hundred  and  twenty,  either  protecting,  establishing,  prohibiting,  or  aliolish- 
ii^  slaverj'."  Sec.  32,  applies  the  same  words  to  Kansas.  The  acts  of  1850,  referred 
to  here,  are  not  particularized.  Those  popularly  known  as  the  Compromise  Measures, 
are  laws  31st  Congress,  ch.  47,  entitled  An  Act  propoxiiuj  to  the  State  of  Texas  the 
Establishinent  'of  her  Northern  and  Western  Boundaries,  the  Eelinqidshment  by  the  said 
State  of  all  Territory  claimed  by  her  exterior  to  said  Boundaries,  and  of  all  her  clatins  upon 
the  United  States,  and  to  establish  a  Territorud  Government  for  New  Mexico.  Sec.  2,  of 
this  act  provides,  "That,  when  admitted  as  a  State,  the  said  Territory,  [of  New 
Mexico.]  or  any  portion  of  the  same,  shall  be  received  into  the  Union,  with  or  without 
slavery  as  their  constitution  may  prescribe  at  the  time  of  their  admission."  Also,  ch.  50, 
An  Act  for  the  Admission  of  the  State  of  California  into  the  Union  ;  ch.  51,  An  Actio 
establish  a  Territorial  Government  for  Utah  ;  in  neither  of  which  last  is  any  thing  said 
about  slavery;  ch.  60,  The  fugitive  slave  law,  and  ch.  63,  An  Act  to  suppress  the  Slave 
Trade  in  the  District  of  Columbia.  .. 

The  act  of  Mar.  6,  18:^0,  was  entitled,  for  the  admission  of  Missouri  and  ''to  prohibit 
slavery  in  certain  territories."  Sec.  8,  provided,  "  That  in  all  that  territory  ceded  by 
France  to  the  United  States,  under  the  name  of  Louisiana,  which  lies  north  of  thirty- 
six  degrees  and  thirty  minutes  north  latitude,  not  included  within  the  limits  of  the 
State  contemplated  by  this  act,  slavery  and  involuntary  servitude,  otherwise  than  in 
the  punishment  of  crimes  whereof  the  parties  shall  have  been  duly  convicted,  shall  be 
and  is  hereby  for  ever  prohibited." 


564  CRITERION    OF    PROPERTY, 

dwelt  upon  in  the  argument "  of  this  case,  as  detej-mining 
whether,  as  was  urged  or  supposed  on  one  side,  "  there  is  a  dif- 
ference between  property  in  a  skve  and  in  otlier  ]>roperty,  and 
that  different  rules  may  be  ap])lied  to  it  in  expounding  tlie  Con- 
stitution of  the  United  States." 

If  the  term  "law  of  nations,"  is  here  taken  in  the  sense 
usually  given  to  it  in  English  and  American  jurisprudence,'  the 
sense  of  public  international  law,  a  law  of  imperfect  obligation, 
acting  on  states  or  nations  as  its  subjects,  the  veiy  definition  of 
that  law  maintains  the  declaration  of  the  Chief  Justice,  "  that 
there  is  no  law  of  nations  standing  between  the  people  of  the 
United  States  and  their  Grovernment  and  interfering  with  their 
relation  to  each  other."  So,  too,  it  must  be  admitted  by  all 
who  recognize  the  Constitution  as  the  supreme  public  law,  that 
"  the  powers  of  the  Government  and  the  rights  of  the  citizen 
under  it  are  positive  and  practical  regulations  plainly  written 
down.  The  people  of  the  United  States  have  delegated  to  it  cer- 
tain enumerated  powers,  and  forbidden  it  to  exercise  others.  It 
has  no  power  over  the  person  or  property  of  a  citizen  but  what 
the  citizens  of  the  United  States  have  granted."  It  follows  also, 
from  the  recognition  of  the  constituting  people  of  the  United 
States  as  a  sovereign,  that  "  no  laws  or  usages  of  other  nations, 
or  reasoning  of  statesmen  or  jurists  upon  the  relations  of  master 
and  slave,  can  enlarge  the  powers  of  the  Government  or  take 
from  the  citizens  the  rights  they  have  reserved."  These  propo- 
sitions seem  to  be  unquestioned.  As  Mr.  Justice  Catron  says, 
on  page  519  of  the  report,  "  That  Congress  has  no  authority  to 
pass  laws  and  bind  men's  rights  beyond  the  jwwers  conferred  by 
the  Constitution  is  not  open  to  controversy." 

§  512.  But  when  the  question  before  a  judicial  tribunal  is, 
as  it  was  stated  by  the  Chief  Justice,  on  page  444  of  the  report, 
"  what  power  Congress  can  constitutionally  exercise  in  a  Terri- 
tory over  the  rights  of  persons  or  rights  of  property  of  a  citizen  ;" 
or,  when,  as  said  by  Mr.  Justice  Catron,  on  page  519,  "it  is 
insisted  that,  by  the  Constitution,  Congress  has  power  to  legis- 

'  Compare  ante,  §  146. 


CRITERION    OF    PROPERTY.  565 

late  for  and  govern  the  Territories  of  the  United  States,  and 
that  by  force  of  the  power  to  govern,  laws  could  be  enacted, 
prohibiting  slavery  in  any  portion  of  the  Louisiana  Territory, 
and,  of  course,  to  abolish  slavery  in  all  parts  of  it,  whilst  it  was, 
or  is,  governed  as  a  Territory ;"  and  when  the  tribunal  refers  to 
those  provisions  of  the  Constitution  which  are  in  the  nature  of 
a  bill  of  rights,  or  ojierate  as  private  law  in  securing  rights  to 
private  persons  throughout  the  whole  dominion  of  the  people  of 
the  United  States,  as  against  the  constituted  Government,  and 
designates  the  clause  declaring  that  no  person  shall  be  deprived 
of  froperty  without  due  process  of  law,  as  securing  a  particular 
right  in  controversy  ;  it  is  to  be  presumed,  (and  in  direct  pro- 
portion with  the  respect  due  to  the  court  is  the  strength  of  the 
presumption,)  that  the  judge  will  conceive  of  property  according 
to  some  standard,  criterion,  or  definition  known  to,  and  cus- 
tomarily accepted  by,  the  possessors  of  sovereign  power  whose 
will  he  is  to  apply  as  law  ;  that  the  standard  of  property  will 
not  be  merely  such  as  he  himself  conceives  to  be  proper,  expe- 
dient, morally  or  j)olitically  desirable,  or  conformable  to  the  law 
of  nature,  simply  as  he  conceives  it  to  be.^ 

If  there  is  no  written  or  statute  law,  derived  from  this  pos- 
sessor of  sovereign  j>ower,  whose  will  and  whose  will  alone  the 
tribunal  can  enforce,  which  declares  what  is  or  is  not  property, 
the  definition  must  be  found  in  an  unwritten  or  customary  law 
which  has  been  maintained  by  that  possessor  of  sovereign  power. 

§  513.  There  may  be  cases,  coming  before  the  national  judi- 
ciary in  its  application  of  the  (/^^asi-international  law,  in  which 
rights  and  obligations  are  to  be  determined  according  to  the  law 
of  one  of  the  several  States  or  a  local  municipal  law  ;  though 


'  Wynehamcr  ngst.  the  People,  (a  case  under  tlie  prohibitory  liquor  law,)  3  Kernan 
385;  Comstock,  J.,  "The  fouiidatiou  of  property  is  not  in  philosophic  or  scientific 
speculations,  nor  even  in  suggestions  of  benevolence  and  philanthropy.  It  is  a  simple 
and  intelligible  proposition,  admitting  in  the  nature  of  the  case  no  qualification,  that 
that  is  property  which  the  law  of  the  land  recognizes  as  such.  It  is,  in  short,  an  in- 
stitution of  law,  and  not  a  result  of  speculation  in  science,  in  morals,  or  economy." 
And  so  in  determining  this  question  of  property  in  negroes,  it  is  equally  immaterial 
whether  negroes  naturalhj  are  and  ought,  legally,  to  be  held  equal  to  whites,  or  whether 
they  natiiralh/  are  and  ourjht,  legally,  to  be  held  inferior  creatures,  and,  a.s  domestic 
animals,  merely  instruments  in  the  possession  of  legal  persons. 


566  CRITERION    OF    PROPERTY. 

they  are  to  be  enforced  or  maintained  by  the  national  authority. ' 
But  in  the  case  before  the  court,  the  question  was  not  of  a 
standard  of  property  accordant  with  the  juridical  will  of  some 
one  State,  or  with  that  of  any  number  of  the  several  States.** 
The  question  was,  indeed,  one  of  a  local  municipal  law,  the  law 
prevailing  in  one  of  the  Territories,  but  a  law  derived  from  the 
juridical  will  of  the  nation,  the  integral  people  of  the  United 
States, 

There  was  no  written  or  statutory  enactment,  proceeding 
from  that  integral  people,  which  defined  projierty,  nor  any  dis- 
tinguishing between  legal  persons  and  legal  things,  much  less 
any  declaring  that  natural  persons  held  in  servitude  are  or  may 
be  property  in  the  juridical  sentiment  of  that  integral  people. 
The  standard  or  criterion  of  property  was,  tlierefore,  only  to  be 
found  in  unwritten  or  customary  law,  identified  with  the  law- 
giving authority  of  the  nation,  the  constituting  people  of  the 
United  States.^ 

§  514.  Now  although  it  may  be  admitted  that  there  is  no 
separate,  distinct  rule  of  action,  derived  only  from  precedent  and 
custom,  which  has  territorial  extent  within  the  entire  domain  of 
the  United  States  as  one  nation  ;  that  the  law  of  the  United 
States  is  found  in  the  written  Constitution  and  the  acts  of  Con- 
gress passed  in  pursuance  of  it  ;  that,  in  civil  cases,  the  national 
judiciary  applies  common  law  as  the  rule  obtaining  within  some 
one  State  or  several  jurisdiction  of  the  United  States,  and  has 
no  common  law  to  apply  in  the  exercise  of  its  criminal  juris- 


'  Ante,  §§  368,  429. 

'  According  to  Mr  Justice  Campbell's  view  it  is  always  the  Constitution  or  law 
of  some  one  State  of  the  Union  which  in  any  place  within  the  United  States  furnishes 
the  legal  criterion  of  what  is  or  is  not  property,  and  '•  what  these  Constitutions  and 
laws  validly  determine  to  be  property,  it  is  the  dut\-  of  the  Federal  Government, 
through  the  domain  of  jurisdiction  merely  Federal,  to  recognize  to  be  property." 
(p.  515  of  rep.)  As  then,  according  to  Judge  Campbell's  theory,  there  is  no  integral 
nation  or  people  of  the  U.  S.,  there  can  be  no  national  law  determining  what  is  or 
is  not  property. 

^  P'rom  the  whole  of  the  extract  from  the  Opinion,  already  given,  it  appears  that 
the  Chief  Justice  also  referred  to  certain  clauses  in  the  Constitution  as  a  legislative  decla- 
ration that  slaves  are  to  he  considered  property.  The  reasons  for  excepting  to  this  have 
already  been  stated,  p.  560.  It  would  be  ton  much  like  arguing  iu  a  circle  to  cite  these 
clauses  as  declaring  that  slaves  are  to  be  regarded  as  property,  and,  on  the  other  hand, 
refer  to  the  doctrine  that  slaves  are  property,  to  interpret  these  clauses. 


PROPERTY    BY    LAW    OF    NATIONS.  567 

diction/  still  it  is  absolutely  impossible,  from  the  nature  of 
positive  legislation,  that  its  enactments  should  be  judicially  ap- 
plied without  reference  to  unwritten  or  customary  rules,*^  and 
the  meaning  of  words  in  the  written  Constitution  cannot  be 
ascertained  without  some  reference  to  an  unwritten  jurispru- 
dence.^ Even  should  there  be  none  such  particularly  identified 
with  the  juridical  history  of  that  particular  possessor  of  sove- 
reign power  whose  written  law  is  to  be  applied,  an  unwritten 
jurisprudence  is  still  judicially  cognizable,  that  derived  irom  the 
juridical  history  of  civilized  nations,  the  law  of  nations,  uni- 
versal jurisprudence  ;  and  hence,  "  the  laws  and  usages  of  other 
nations  and  the  writings  and  reasoning  of  statesmen  and  emi- 
nent jurists,"  customarily  received  by  the  judicial  tribunals  of 
other  nations,  are  to  be  referred  to  as  an  exposition  of  natural 
reason,  superior,  for  juridical  purposes,  to  the  individual  opinions 
of  the  tribunal,  because  presumptively  accepted  by  the  possessor 
of  sovereign  power  whose  will  it  proposes  to  execute.'' 

And  that  such  reference  is  recognized  by  the  Court,  in  this 
case,  as  legitimate,  particularly  with  reference  to  a  standard  of 
property  and  in  distinguishing  between  natural  persons  as  being 
either  legal  persons  or  chattels,  appears  from  that  portion  of 
the  Opinion  in  which  it  is  held  that  negroes  are  not  citizens, 
page  407  of  the  report  ;  referring  to  "  the  public  history  of 
every  European  nation  ;"  that  the  negro  "  was  bought  and  sold 
and  treated  as  an  ordinary  article  of  merchandise  and  traffic 
whenever  a  profit  could  be  made  by  it.  This  opinion  was  at 
that  time  fixed  and  universal  in  the  civilized  portion  of  the 
white  race,"  &c." 

§  515.  The  reference  is  to  the  law  of  nations  in  the  sense  of 
universal  jurisprudence,  the  jus  gentium  in  that  sense  in  which 
the  term  was  used  by  the  Roman  jurists,  a  law  always  pre- 
sumptively existing  in  the  municipal  (national)  law  of  every 
civilized  country.^     In  determining  then  what   is  or  what  is 

'  Ante^  p.  479-482.     Wheaton  v.  Peters,  8  Peters,  591.     Curtis'  Comm.  §  19, 
and  cases  noted. 

■  Lieber's  Leg^  and  Political  Ilermeueutics,  ch  ii. 

'  Ante,  §  428.     1  Kent's  Comm.  336.  *  Ante,  §§  33,  34,  and  pi^.  200-202. 

*  See  ante,  p.  207,  note.  "  Ante,  §§  94,  95,  100. 


568  LAW    OF    NATIONS WHERE    FOUND, 

not  property,  as  secured  against  the  national  Government  hj 
the  private  law  of  the  Constitution,  the  criterion  is  a  universal 
jurisprudence,  gathered,  in  the  first  instance,  from  the  judicial 
practice  of  all  nations,  and,  more  definitively,  those  i)riuciple8 
which  the  possessor  of  sovereign  power,  for  whom  the  national 
judiciary  acts,  has  before  recognized  as  universal  jurisprudence 
embraced  in  its  own  common,  customaiy,  unwritten  law,  and 
recognizable  especially  in  that  portion  which  is  applied  as  pri- 
vate and  i)ublic  international  law.' 

§  516.  It  being  a  rule  identified  with  the  will  of  the  integral 
nation,  in  distinction  from  any  dependent  for  its  authority  on 
the  several  will  of  any  State  or  States  of  the  Union,  which  is  to 
be  ascertained,'^  the  princij)les,  maxims,  or  rules  affecting  status 
or  the  condition  of  private  persons,  which  the  national  judiciary 
must  thus  recognize  as  universal  principles  and  common  law, 
are  to  be  found  only  in  the  history  of  law  having  the  same 
character  and  operating  with  national  extent^  and  quasi-mtQT- 
national  effect  in  the  British  empire,  the  revolting  colonies  and 
the  t>hereafter  succeeding  independent  States  of  the  American 
Union  ;  and,  as  such,  distinguishable  from  the  common  law 
which  is  historically  known  to  have  prevailed  in  any  one  or 
more  States  of  that  Union. ^ 

§  517.  This  law  is  mutal)le,  as  every  other  rule  resting  on 
human  authority.  And  a  tribunal  determining  to-day,  what  is 
property  by  the  law  of  nations,  is  bound  to  take  the  law  of  na- 
tions of  to-day,  not  that  of  some  previous  generation  or  pre- 
vious century.  It  is  a  rule  which  depends  for  its  juridical 
force,  or  for  its  acceptance  as  a  judicial  rule,  not  on  the  opinion 
of  bygone  nations  and  states,  however  powerful,  or  however 
wide  their  dominion  or  the  fame  of  their  arts,  their  arms,  or 
their  jurisprudence,  but  on  the  presently  continuing  assent  of 
legislating  nations.  So  far  as  the  law  of  imperial  Kome  is  now 
the  index  of  the  jus  gentium,  it  is  so  not  because  it  is,  in  itself, 
reason  or  natural  justice  ;  but  because  it  has  been,  and  so  far 
only  as  it  has  been,  continuously  accepted  by  modern  civilized 

'  Ante,  §§  173,  176,  290.  ^  On  this  compare  ante,  ch.  xii. 

^  Compare  ante,  ch.  xiv. 


PROPERTY    BY    LAW    OF    NATIONS.  569 

states  as  their  index  of  natural  reason. '  As  the  jus  gentium 
of  heathen  Kome,  making  the  captive  and  the  child  of  an  en- 
slaved mother,  of  Euro])can  or  Caucasian  race,  a  property,  has 
been  changed  in  the  jurisprudence  of  Christian  nations,  so  the 
law  of  nations  of  the  modem  world,  including  the  nations  colo- 
nizing America  in  the  sixteenth,  seventeenth,  and  eighteenth 
centuries,  has  changed  in  respect  to  negroes  held  in  servitude. 
Proi)erty  in  negro  men  as  chattels,  wherever  they  are  by  law 
chattels  or  property,  rests  now  only  on  the  local  law,  the  jus 
proprium,  common  law  or  statute  law,  as  the  case  may  be,  of 
some  one  state  or  possessor  of  sovereign  power  over  the  condi- 
tion of  natural  persons  ;  it  has  no  foundation  in  universal  juris- 
prudence, the  common  law  of  the  civilized  Christian  world. 

The  proof  of  this  has  been  given  in  the  former  part  of  this 
volume. 

§  518.  And  if  it  should  be  objected,  that  in  this  reference  to 
a  law  of  nations  or  a  universal  jurisprudence  presumptively  re- 
cognized as'a  jural  rule  by  the  nation  or  by  the  people  of  the 
United  States,  the  authors  of  the  American  Constitution,  to 
determine  what  is  or  is  not  property  in  view  of  the  constitutional 
guarantee,  not  the  laio  of  nations  of  to-day,  nor  yet  that  of  the 
whole  civilized  world  is  the  test,  but  one  peculiar  to  the  people 
of  the  United  States  ;  or,  that  one  recognized  among  the 
States  at  the  time  of  the  formation  of  the  Constitution  of  the 
United  States  must  be  received  in  that  connection  ;  then  the 
history  of  the  law  of  the  colonies  and  States  is  to  be  referred  to, 
not  as  exhibiting  the  several  or  local  laws  of  the  States  or  their 
political  predecessors,  but  that  law  which  was  imperial  or  na- 
tional in  its  authority^  and  intercolonial,  national,  or  quasi-m~ 
ternational  in  its  extent  in  the  British  empire  and  among  the 
States  at  the  period  of  the  formation  of  the  Constitution. 

§  519.  The  juridical  history  of  the  States,  as  connected  with 
conditions  of  freedom  and  its  contraries,  from  the  period  of 
separation  from  Great  Britain,  (the  point  of  time  to  which  it 
has  been  brought  in  the  sixth  chapter,)  to  the  date  of  the  forma- 
tion of  the  Constitution,  is  to  be  given  hereafter.     It  will  be 

»  Ante,  p.  29. 


570  QUESTION    IN    LAW    OF    NATIONS. 

there  shown,  and  indeed  it  is  too  well  known  to  he  here  stated 
as  questionable,  that  the  changes  which  occurred  during  that 
period  in  the  private  law  of  the  States,  were  all  such  as  favored 
or  extended  the  rights  incident  to  a  free  condition,  and  discour- 
aged or  removed  the  disabilities  incident  to  its  contraries.  But, 
independently  of  such  changes  as  modifying  the  laio  of  nations 
or  universal  jurisprudence  particularly  identified  with  the  jurid- 
ical will  of  the  constituent  people  of  the  United  States,  the  in- 
ternational and  f/wasi-international  laws  which  prevailed  as  be- 
tween the  different  i)arts  of  that  empire  in  wliich  the  colonies 
had  been  included,  to  say  nothing  of  the  local  laws  of  some 
districts,  do  not  exhibit  a  criterion  of  property  in  natural  per- 
sons, as  recognized  by  the  political  predecessors  of  that  people, 
different  from  that  afforded  during  the  same  period  by  any  more 
general  law  of  nations. 

That  for  many  years  before  the  Revolution  (whatever  may 
have  been  the  principles  sustaining  the  slavery  of  a  heathen  negro 
imported  into  any  one  of  the  colonies)  the  condition  of  an  Amer- 
ican-born negro  held  in  involuntary  servitude,  whether  chattel 
slave  or  bond  person,  and  the  correspondent  nghts  of  the  master 
or  owner  rested  exclusively  on  the  local  law,  jus  proprium,  of 
some  one  several  colony,  and  were  not  internationally  recognized, 
in  the  several  parts  of  the  empire,  as  effects  of  universal  juris- 
prudence, nor  as  such  recognized  by  the  common  law  of  the  na- 
tion, has,  it  is  believed,  been  demonstrated  in  the  former  chapters, 
which  contain  the  history  of  conditions  of  freedom  and  bondage 
in  the  colonies,  and  of  th'eir  recognition  or  non-recognition  in  the 
international  cr  gwo si-international  relations  of  the  different 
portions  of  the  empire. 

§  520.  From  the  above  argument  it  may  appear  that,  in 
order  to  determine  what  is  or  is  not  property  in  view  of  the  con- 
stitutional guarantee,  it  is  necessary  to  discriminate  an  un- 
written jurisprudence  or  a  "  common  law  "  which  may  be  judi- 
cially identified  with  the  juridical  will  of  the  people  of  the 
United  States,  the  authors  of  the  written  Constitution.  And,  in 
view  of  this  circumstance,  it  seems  that  the  assertion  that  slaves 
are  property  in  view  of  that  guarantee,  independently  of  any 


QUESTION    IN    COMMON    LAW.  571 

specific  recognition  of  them  as  property  in  other  parts  of  the  in- 
strument, is  equivalent  to  an  assertion,  that,  unless  declared  un- 
lawful by  positive  legislation  proceeding  from  the  possessors  of  sov- 
ereign power  to  determine  status  or  personal  condition,  (possessors 
known  by  the  Constitution,  regarded  as  evidence  of  the  investi- 
ture of  any  sovereign  power,)  slavery  is  a  lawful  status  in  every 
part  of  the  United  States,  whether  a  State  or  a  Territory  of  the 
United  States ;  or  that  (which  is  only  stating  the  same  doctrine 
under  a  difi:erent  form,)  when  natural  persons  who,  in  any  other 
jurisdiction  or  forum,  have  been  by  law  in  the  relation  of  master 
and  slave  appear  in  any  State  or  Territory  of  the  United  States, 
the  right  of  the  master  and  the  correlative  obligations  of  the 
slave  and  of  all  other  persons,  will  continue  in  such  State  or 
Territory  by  the  unwritten  or  common  law  prevailing  therein, 
whether  such  master  and  slave  do  or  do  not  acquire  a  domicil, 
unless  such  right  and  obligations  have  been  prohibited  by  posi- 
tive legislative  enactment  proceeding  from  the  actual  possessors  of 
sovereign  power  to  determine  status  or  personal  condition.  And, 
it  being'  assumed  that  the  only  possessors  of  sovereign  power 
over  status  or  personal  condition,  who  are  known  under  the  Con- 
stitution, are  either  the  people  of  an  organized  State  of  the 
Union  legislating  for  such  State,  or  Congress  legislating  for  the 
Territories,  &c.,  to  such  extent  as  may  not  have  been  prohibited 
by  the  Constitution,  the  doctrine  is,  further,  (independently  of 
the  question  whether  slavery  may  be  abolished  by  the  power  of 
Congress,)  that  in  all  Territory  of  the  United  States,  now  be- 
longing or  hereafter  to  be  acquired,  not  included  within  the  limits 
of  an  organized  State  of  the  Union,  slavery  is  now  and  will  be 
lawful  under  the  local  law  thereof,  that  is  both  by  the  internal 
and  the  international  law,  the  law  applying  to  persons  whether 
strangers  or  having  a  domicil  therein. 

§  521,  Although  the  opinion  of  Chief  Justice  Taney,  in  Dred 
Scott's  case,  supported  by  Justices  Wayne  and  Grier,  may  be 
the  solitary  judicial  authority  sustaining  the  doctrine  above 
stated,  it  has,  with  greater  or  less  openness,  been  advanced  on 
different  occasions,  during  the  twenty  or  thirty  years  last  past, 
by  persons,  occupying  stations  which  entitle  their  opinions  to  be 


572  SPEECH    OF    HON.  J.  P.  BENJAMIN. 

considered,  at  least,  juristical,  if  not  judicial  or  juridical.  But 
it  has  never,  probably,  been  so  ])rominently  and  distinctly  as- 
serted as  by  the  Hon.  J.  P.  Benjamin,  of  Louisiana,  in  his  speech 
in  tbe  Senate  of  the  United  States,  11  March,  1858,  on  the 
Kansas  Bill.  And  since,  in  stating  what  he  justly  regards  as 
"  fundamental "  in  the  argument,  the  Senator  so  plainly  pre- 
sents that  issue,  in  view  of  which  this  volume  may  be  said  to 
have  been  principally  written,  and  also  since  he  proposes  to 
maintain  his  doctrine  by  that  mode  of  reasoning  which  has 
herein  before  been  used  as  legitimate,  i.  e.,  by  an  appeal  to  the 
history  of  jurisprudence  in  this  country,  and  not  by  a  priori 
assertions,  the  statement  of  his  position  is  here  given,  as  ex- 
tracted from  the  printed  speech,  which  bears  the  title.  Slavery 
protected  by  the  Common  Laiv  of  the  Neiv  World :  guaranteed 
by  the  Constitution.  Vindication  of  the  Supreme  Court  of  the 
United  States} 

"  Mr.  President, — The  whole  subject  of  slavery,  so  far  as  it  is 
involved  in  the  issue  now  before  the  country,  is  narrowed  down  at 
last  to  a  controversy  on  the  solitary  point,  whether  it  be  compe- 
tent for  the  Congress  of  the  United  States,  directly,  or  indirectly, 
to  exclude  slavery,  from  the  Territories  of  the  Union.  The  Su- 
preme Court  of  the  United  States  have  given  a  negative  answer 
to  the  proposition,  and  it  shall  be  my  first  effort  to  support 
that  negation  by  argument,  independently  of  the  authority  of 
the  decision. 

"  It  seems  to  me  that  the  radical,  fundamental  error  which 
underlies  the  argument  in  affirmation  of  this  power,  is  the  as- 
sumption that  slavery  is  the  creature  of  the  statute  law  of  the 
several  States  where  it  is  established  ;  that  it  has  no  existence 
outside  of  the  limits  of  those  States  ;  that  slaves  are  not  prop- 
erty beyond  those  limits ;  and  that  property  in  slaves  is  neither 
recognized  nor   protected  by  the   Constitution  of  the  United 


'  The  last  title  was  probably  adopted  for  this  speech,  not  so  much  in  view  of  its 
being  a  vindication  of  the  law  of  the  majority  of  the  Court  in  Dred  Scott's  case,  as  of 
its  being  partly  a  reply  to  Mr.  Seward's  censures,  in  the  same  debate,  on  the  course  of 
the  majority  of  the  Supreme  Court  as  having  been  influenced  by  pe'itical  considerations. 
All  such  matter  of  exception  or  defence  is,  of  course,  foreign  te  the  purpose  of  this 
treatise. 


SLAVERY    BY    COMTMON    LAW.  573 

States,  nor  by  international  law.     I  controvert  all  these  propo- 
sitions, and  shall  proceed  at  once  to  my  argument. 

"  The  thirteen  colonies  which,  on  the  4th  of  July,  1776, 
asserted  their  independence,  were  British  colonies,  governed  by 
British  laws.  Our  ancestors  in  their  emigration  to  this  country 
brouo-ht  with  them  the  common  law  of  England  as  their  birth- 
right.  They  adopted  its  principles  for  their  government  so  far 
as  it  was  not  incompatible  with  the  peculiarities  of  their  situ- 
ation in  a  rude  and  unsettled  country.  Great  Britain  then 
having  the  sovereignty  over  the  colonies,  possessed  undoubted 
power  to  regulate  their  institutions,  to  control  their  commerce, 
and  to  give  laws  to  their  intercourse,  both  with  the  mother 
country  and  the  other  nations  of  the  earth.  If  I  can  show,  as  I 
hope  to  be  able  to  establish  to  the  satisfaction  of  the  Senate, 
that  the  nation  thus  exercising  sovereign  power  over  these  thir- 
teen colonies  did  establish  slavery  in  them,  did  maintain  and 
protect  the  institution,  did  originate  and  carry  on  the  slave 
trade,  did  support  and  foster  that  trade,  that  it  forbade  the 
colonies  permission  either  to  emancipate  or  export  their  slaves, 
that  it  prohibited  them  from  inaugurating  any  legislation  in 
diminution  or  discouragement  of  the  institution  ; '  nay,  more,  if 
at  the  date  of  our  Revolution  I  can  show  that  African  slavery 
existed  in  England  as  it  did  on  this  continent,  if  I  can  show 
that  slaves  were  sold  upon  the  slave  mart,  in  the  Exchange  and 
other  public  places  of  resort  in  the  city  of  London  as  they  were 
on  this  continent,  then  I  shall  not  hazard  too  much  in  the  as- 
sertion that  slavery  was  the  common  law  of  the  thirteen  States 
of  the  Confederacy  at  the  time  they  burst  the  bonds  that  united 
them  to  the  mother  country." 

§  522.  The  brief  historical  summary  of  juridical  acts,  given 
in  the  continuation  of  this  speech,  upon  which  Mr.  Benjamin 

'  The  Senator,  to  niiiiiitain  the  legality  of  slavciy  in  the  Territories,  attributes  the 
existence  of  slavery  in  the  colonies  to  a  national  law  of  the  em])lre,  a  law  derived  from 
the  powers  vested  by  the  public  law  of  the  colonial  period  in  the  crown  and  parliament 
of  England.  Mr.  Justice  Campbell's  argument,  maintaining  that  Congress  has  no 
power  upon  the  subject,  (19  Howard,  501,)  involves  the  doctrine  that  its  existence  de- 
pended upon  the  local  legislatures,  and  that  the  exercise  of  power  over  slavery  by  the 
imperial  Government  was  rightfully  resisted  as  usurpation.  On  this  point  compare, 
ante,  §  215  and  note,  §  243. 


574  THE    QUESTION    OF    COMMON   LAW. 

relies,  contains  no  essential  fact  which  has  not  been  considered 
more  at  length  in  the  previous  chapters  of  this  work.  The  ob- 
servations already  made  herein,  on  the  question  whether  slaves 
are  property  in  view  of  the  Constitutional  guarantee,  apply 
equally  to  the  propositions  here  laid  down  by  the  Senator.  For 
it  has  been  shown  that  slavery,  as  a  legal  effect,  depended  on 
the  common  law  having  a  national  extent  throughout  the  em- 
pire during  the  colonial  period  only,  if  at  all,  while  it  was  at- 
tributable to  the  laio  of  nations  or  the  universal  jurisprudence 
of  the  time  ;  that  it  was  only  the  slave  condition  of  imported 
heathen  African  slaves,  if  of  any,  which  was  so  maintained  or 
recognized  by  that  law  ;  that  the  condition  of  the  American- 
born  negro,  whether  free  or  slave,  depended  entirely  on  the  powers 
held  by  the  local  colonial  Governments,  and  that  if  the  slaver}' 
of  such  persons  was  within  the  colonies  sustained  by  a  common 
law,  that  law  was  still  only  the  local  law  of  a  colony,  and  one 
distinguishable  from  the  common  law  having  national  extent  in 
all  parts  of  the  empire. ' 

It  follows,  therefore,  that  when  in  any  several  jurisdiction  or 
forum  of  the  United  States,  either  a  State  or  a  Territory  of  the 
United  States,  the  question  is  of  the  judicial  recognition  of 
slavery,  as  the  condition  of  a  person  introduced  from  some  other 
jurisdiction  or  forum  wherein  such  slavery  had  been  lawful,  such 
slavery  cannot  be  recognized  or  maintained  simply  on  the  ground 
that  it  is  a  status  known  to  and  recognized  by  the  common  law 
prevailing  in  such  State  or  Territory  as  its  local  law,  or  ^'law  of 
the  land,"  where  not  prohibited  by  any  statute.^ 

§  523.  The  question  would  be  determined  by  those  principles 
of  private  international  law,  including  the  so-called  rule  of 
comity,  which  have  been  set  forth  in  the  second  chapter.  These 
princij)les  are  indeed  common  law  ;  but  if  by  applying  them 
slavery  should  be  recognized,  such  recognition  would  still  be  dis- 
tinguishable from  the  judicial  allowance  of  slavery  under  the 
doctrine,  contained  in  Mr.  Benjamin's  propositions,  that  slavery 
is  recognized  by  universal  jurisprudence  entering  into  all  common 

1  Compare  ante,  §§  281,  284,  288,  292,  293,  315,  316. 
"  Compare  ante,  §§  95,  96,  110,  113,  201. 


DEFICIENCY   OF   TERMS.  575 

law  known  in  this  country,  and  that  it  should,  in  the  case  sup- 
posed, be  regarded  as  an  effect  already  known  to  the  law  having 
territorial  extent  in  the  forum,  and  one  which  is  maintained 
under  tliat  law,  irrespectively  of  the  distinction  of  domicil. 

In  any  territorial  jurisdiction  of  the  United  States,  which 
should  be  like  a  State  of  the  Union  in  having  a  local  law,  the 
continuance  of  the  rights  and  obligations  of  masters  and  slaves 
emigrating  thither  would  depend  upon  the  question  whether,  by 
that  law,  rights  inconsistent  with  slaver}^  were  attributed  uni- 
versally, or  to  all  natural  persons. '  If  within  the  national  do- 
minion there  can  be  any  territory  which,  like  the  colonies  at  the 
time  of  their  first  settlement,  is  vacant  of  any  local  law,*^  there 
could  not,  in  such  territory,  be  any  such  universal  attribution 
of  rights.  And,  in  such  case,  it  would  appear  that,  on  ele- 
mentary principles,  all  rights  and  obligations  of  persons  there 
found  which  had  existed  in  their  former  domicil  would  continue 
to  exist,  so  far  as  the  relations  to  which  they  were  incident  con- 
tinued to  be  physically  possible  in  such  territory.  Slavery,  if  so 
recognized  in  such  territory  might,  indeed,  be  said  to  exist 
therein,  or  be  carried  thither,  by  the  operation  of  a  common  law 
principle,  a  principle  of  unwritten  jurisprudence.  But  its  ex- 
istence would  not  be  attributable  to  common  law  in  the  ordinary 
sense  of  customary  law  haAang  territorial  extent  in  some  one  ju- 
risdiction or  forum.  It  would  not  have  been  recognized  as  a 
condition  supported  by  universal  jurisprudence,  the  laiu  of  na- 
tions ;  as  the  slavery  of  captured  Indians  and  imported  heathen 
Africans  had  been  recognized  in  the  colonial  law. 

§  524.  A  principal  obstacle  to  agreeing  on  any  conclusion  in 
these  questions  of  slavery,  one  fully  equal  in  effect  to  that 
caused  by  the  prejudices  or  sympathies  of  disputants,  is  occa- 
sioned by  the  want  of  terms  by  which  to  express  existing  dis- 
tinctions. Thus  the  term  positive  law  is  sometimes  used,  as  in 
this  work,  to  designate  any  rule  which,  as  made  coercive  by  some 
state,  is  so  distinguishable  from  mere  natural  equity  or  natural 
justice  ;  such  positive  law  being  judicially  derived  either  from 
the  several  juridical  action  of  that  state,  creating  a  jus  proprium, 

'  Comp.ire  ante,  §§  88-92,  113-118.  '  Ante,  %%  123-126. 

37 


576  AMBIGUITY    OF    PHRASES. 

which  may  be  either  statute  or  customary  law,  or  from  universal 
jurisprudence,  the  unwritten  lata  of  nations.  But  the  same 
term,  positive  laio,  is  also  very  often  used  to  designate  statute 
law  or  positive  legislation,  as  distinguished  from  customary  or 
unwritten  law  derived  by  the  judicial  application  of  natural  reason. 
Now  since  it  has  repeatedly  been  said  by  judges  both  in 
states  where  it  is  lawful  and  where  it  is  not,  that  slavery  rests 
on  "  positive  law,"  *  the  proposition  is  assumed  by  many  persons 
as  admitted,  as  for  example,  according  to  Senator  Benjamin  in 
the  speech  referred  to,  by  the  Senators  on  the  other  side  "  in 
nearly  all  their  arguments,  that  slavery  is  the  creature  of  posi- 
tive legislation  and  cannot  be  established  by  customary  law  or 
usage." '  Against  which  assumption  Mr.  Benjamin  appropri- 
ately cites  Lord  Stowell  in  the  case  of  the  slave,  Grace,  2  Hag- 
gard's K.  105,  ante,  p.  194,  that  in  the  English  colonies  slavery 
was  legal  by  customary  law  alone. 

^  The  leading  authority  being  Lord  Mansfield,  in  Somerset's  case.  There  is 
hardly  any  other  decision  in  which  the  phrase  positive  law,  simply  or  witliout  qualifi- 
cation, is  used  to  designate  the  origin  of  slavery.  But  in  Neal  v.  Farmer,  9  Geo.  R 
578,  the  court  cites  a  large  number  of  English  and  American  cases  as  holding  the 
same  doctrine.  In  most  of  the  cases,  such  other  terms  are  used  alone  or  are  made 
to  qualify  the  term  positive  law,  as  to  designate,  with  sufficient  accuracy,  a  jus  pro- 
prium.  Thus,  Holroyd,  J.,  in  Forbes  v.  Cochrane,  2  Barn,  and  Cress.  461,  "  the 
phiintifF  claims  a  general  property  in  them  "  «  *  *  "  and  he  claims  this  property  as 
founded  not  upon  any  municipal  law  of  the  country  where  he  resides,  but  upon  a 
general  right,"  *  *  *  "  assuming  that  there  may  be  such  a  relation,  it  can  only  have 
a  local  existence,  where  it  is  tolerated  by  the  particular  law  of  the  place,  to  which  all 
persons  there  resident  are  bound  to  submit.  Now  if  the  plaintiflF  cannot  maintain  this 
action  under  the  general  law  of  nature  independently  of  any  positive  institution,  then 
his  right  of  action  can  be  founded  only  upon  some  right  which  he  has  acquired  by  the 
law  of  the  country  where  he  is  domiciled."  P.  4()8,  "the  right  of  the  master,  which 
is  foimded  on  the  municipal  law  of  the  particidar  place  oidy,  does  not  continue."  Here 
the  term  municipal  law  is  used  to  express  the  conception  of  a  jus  proprium  ;  and  see 
Lunsfoid  V.  Coquillon,  14  Martin's  La.  Rep,  402  ;  Prigg's  case,  IG  Peters,  611,  "  The 
state  of  slavery  is  deemed  to  be  a  mere  numicipal  regulation,  founded  on  and  limited 
to  the  range  of  territorial  laws."  Rankin  r.  Lydia,  2  Marshall,  (Ky.)  470,  "positive 
law  of  a  municipal  character."  Curtis,  J.,  19  Howard,  624 ;  an/e,  p.  550.  In  Com- 
mouw.  V.  Aves,  18  Pick  212,  Judge  Shaw  employs  positive  law  in  the  same  sense  of  a 
local  or  particular  law  distinguished  from  one  generally  recognized.  For  referring  to 
Lord  Mansfield's  dictum  that  slavery,  being  odious  and  against  natural  right,  cannot 
exist,  except  by  positive  law,  he  observes :  "  But  it  clearly  admits  that  it  may  exist 
by  force  of  positive  law.  And  it  may  be  remarked,  that  by  positive  law  in  this  con- 
nection may  be  as  well  understood  cnstoniaiy  law  as  the  enactment  of  a  statute;  and 
the  word  is  used  to  designate  rules  established  by  tacit  acquiescence  or  by  the  legis- 
lative act  of  any  state,  and  which  derive  their  force  and  authority  from  such  acqui- 
escence or  enactment,  and  not  because  they  are  the  dictates  of  natural  justice  and  as 
such  of  imiversal  obligation." 

'  So  in  Hildietli's  Despotism  in  America,  p.  212 ;  Spooner's  Unconstitutionality  of 
Slavery. 


POSITIVE   LAW  ;    HOW   UNDERSTOOD. 


577 


On  the  otber  hand  it  has  been  supposed  by  some  persons 
that,  if  slavery  be  attributed  to  positive  law  in  the  sense  inclu- 
sive of  unwritten  law,  it  cannot  be  attributed  at  the  same  time 
to  a  law  which,  like  statute,  is  peculiar  to  some  one  state  or 
possessor  of  sovereign  power.  Thus  in  Neal  v.  Farmer,  9  Geo. 
R.  581,  the  court  observes  that  Chief  Justice  Shaw,  in  Sims' 
case,  and  in  Commonw.  v.  Aves,  18  Pick.  212,  attributing 
slavery  to  positive  law  defines  it  as  including  customary  law. 
And  because  the  same  Judge,  in  the  latter  case,  refused  to  re- 
cognize the  relation  of  master  and  slave,  or  the  condition  of 
slavery,  in  Massachusetts  (in  cases  not  coming  within  the  fugitive 
slave  provision  in  the  Constitution  of  the  United  States),  the 
Georgia  court  supposes  an  inconsistency.  Although  Judge 
Shaw,  by  his  definition  of  positive  law,  discriminates  some  cus- 
tomary law  as  particular  or  local,  in  respect  to  some  one  state  or 
nation,  and  so  distinguishable  from  a  universal  law. 

So  Senator  Benjamin,  in  the  instance  above,  supposes  that 
he  has  proved  his  point  in  showing  that  slavery  does  not  rest 
upon  positive  law,  in  the  sense  of  positive  legislation  ;  and  in ' 
another  place  says  ;  "  As  to  the  right  in  them,  [slaves]  that 
man  has  to  overthrow  the  whole  history  of  the  world,  he  has  to 
overthrow  every  treatise  on  jurisprudence,  he  has  to  ignore  the 
common  sentiment  of  mankind,  he  has  to  repudiate  the  author- 
ity of  all  that  is  considered  sacred  with  man,  ere  he  can  reach 
the  conclusion  that  the  person  who  owns  a  slave,  in  a  country 
where  slavery  has  been  established  for  ages,  has  no  other  prop- 
erty in  that  slave  than  the  mere  title  which  is  given  by  the 
statute  law  of  the  land  where  it  is  found." 

Now,  although  it  be  admitted  or  proved  that  property  in 
slaves  does  not  rest  upon  positive  statute,  but  upon  unwritten 
law,  it  is  not  thereby  proved  that  it  rests  on  a  law  which  origi- 
nates in  "  the  common  sentiment  of  mankind,"  and  which  ju- 
dicial tribunals  are  bound  to  recognize  as  presumptively  accepted 
by  that  possessor  of  sovereign  power  whose  will  they  are  to 
apply  as  positive  law. 

§  525.  As  has  been  before  observed,  the  discrimination  of 
such  laws  is  principally  requisite  in  the  application  of  interna- 


578  DEFICIENCY    OF    TERMS 

tional  private  law.'  Thus  the  English  case  of  Forbes  v.  Coch- 
rane, in  which  Holroyd,  J.,  in  a  part  of  his  opinion  already 
noted,  distinguished  slavery  as  resting  on  a  "munici])al,"  local, 
or  "particular"  law  of  some  one  country  in  contradistinction  to 
"  general  right"  or  "general  law  of  nature,"  was  one  involving 
the  application  of  that  international  law.  And  the  same  o]iinion 
is  cited  by  Chief  Justice  Shaw,  in  Commonwealth  v.  Aves,  18 
Pick.,  in  deciding  that,  independently  of  any  provision  in  the 
Constitution  of  the  United  States,  the  right  of  a  master  in  re- 
spect to  a  slave,  which  was  valid  or  legal  in  Louisiana,  the  place 
of  their  domicil,  could  not  be  recognized  in  Massachusetts  by 
international  private  law.  And  Judge  Shaw,  giving  his  con- 
ception of  the  distinction  in  his  own  language,  says,  p.  216, 
"  This  view  of  the  law  ajjplicable  to  slavery  marks  strongly  tlie 
distinction  between  the  relation  of  master  and  slave,  as  estab- 
lished by  tlie  local  law  of  particular  states  and  in  virtue  of 
that  sovereign  power  and  independent  authority  which  each  in- 
dependent state  concedes  to  every  other,  and  those  natural  and 
social  relations  which  are  everywhere  and  by  all  people  recog- 
nized, and  which,  though  they  may  be  modified  and  regulated  by 
municipal  law,  are  not  founded  upon  it,  such  as  the  relation  of 
parent  and  child,  and  husband  and  wife.'^  Such  also  is  tlie 
principle  ujion  which  the  general  right  of  property  is  founded, 
being  in  some  form  universally  recognized  as  a  natural  right, 
independently  of  municipal  law. 

"  This  affords  an  answer  to  the  argument  drawn  from  the 
maxim  that  the  right  of  personal  property  follows  the  person, 
and,  therefore,  where  by  the  law  of  a  place  a  person  there  domi- 
ciled acquires  personal  property,  by  the  comity  of  nations  the 
same  must  be  deemed  his  property  everywhere.  It  is  obvious, 
that  if  this  were  true,  in  the  extent  in  which  the  argument  em- 
ploys it,  if  slavery  exists  anywhere,  and  if,  by  the  laws  of  any 
place  a  property  can  be  acquired  in  slaves,  the  law  of  slavery 
must  extend  to  every  place  where  such  slaves  may  be  carried. 
The  maxim,  therefore,   and  the    argument  can  ajiply  only  to 

»  Ante,  §§  101,  158,  306.  .  »  Compare  ante,  §  109. 


AND    A    RESULTING   CONFUSION.  579 

those  commodities  which  are  everywhere,  and  by  all  nations, 
treated  and  deemed  subjects  of  property." 

§  526.  But,  from  not  distinguishing  any  other  visible  origin 
of  law  than  the  several  will  of  single  states  or  nations,  jurists 
of  the  highest  eminence  sometimes,  (as  in  the  instance  of  the 
Georgia  case  and  of  Senator  Benjamin's  argument,  last  cited,) 
assume  that,  if  a  relation  is  proved  to  exist  by  unwritten,  cus- 
tomary law,  judicial  application  of  natural  reason,  in  one  forum 
or  under  one  possessor  of  sovereign  power,  it  is  thereby  proved 
to  have  legal  existence  in  every  other  country  as  customary  law, 
judicial  application  of  natural  reason.  Or,  sometimes,  while 
discriminating  a  law  which  has  judicial  recognition  in  every 
forum  by  reason  of  its  universality,  and  which  is  to  be  distin- 
guished from  the  local  or  particular  law  (statute  or  customary) 
of  some  one  country,  they  confound  their  own  (subjective)  idea 
of  right,  or  what  they  call  "  natural  law,"  the  judgment  of  their 
individual  moral  sense,  with  the  (objective)  conception  of  right 
furnished  by  the  juridical  history  of  the  world,  or  of  those  nations 
with  whose  international  relations  they  are  conversant,  the  his- 
torical laio  of  nations.^  In  other  words,  instead  of  strictly  ob- 
serving what  rules  are  recognized  among  all  or  many  nations, 
assuming  that  they  are  founded  in  natural  reason,  (as  the  Roman 
attributed  to  naturalis  ratio  whatever  apud  omnes  populos  per- 
jeque  custoditur,-)  and  applying  these  as  universal  jurisprudence, 
(jus  gentium,)  they  determine  what,  by  their  individual  natural 
reason,  should  be  recognized  among  all  nations,  and  apply  that 
as  the  universal  rule,  calling  it  "  the  general  law  of  nature," 
"  the  dictates  of  natural  justice  ;"  or  using  some  similar  term 
appropriate  to  designate  a  rule  of  ethics. 

Illustrations  of  this  latter  error  are  given  both  by  those  who 
demand  that  slavery  shall  be  everywhere  judicially  recognized, 
as  supported  by  customary  law,  and  by  those  who  deny  it  that 
recognition. 

§  527.  Thus  in  the  definition,  in  Commonw.  v.  Aves,  already 
given,  of  positive  law,  where  he  distinguishes  it  as  the  rules 
which  are  "  established  by  tacit  acquiescence  or  by  the  legis- 

'  Ante,  p.  109,  note.  '  ArUe,  §  152. 


580  CONFUSION    RESULTING 

lative  act  of  any  state,  and  which  derive  their  force  and  au- 
thority from  such  acquiescence  or  enactment,"  Judge  Shaw 
refers  to  other  rules,  as  being  also  law  ;  calling  them  "  the  dic- 
tates of  natural  justice,  and  as  such  of  universal  obligation  ;" 
apparently,  however,  without  acknowledging  any  other  index  of 
these  latter  than  the  individual  conscience  of  the  tribunal  ex- 
ercising jurisdiction, 

A  passage  from  the  same  opinion  has  already  been  cited  as 
giving  what  is  probably  the  clearest  instance  of  a  judicial  attri- 
bution of  slavery  to  "local  "or  "  particular "  laws,  as  distin- 
guished from  a  universal  jurisprudence.  But  though  in  the 
conclusion  of  the  passage,  Judge  Shaw  particularly  indicates 
that  some  objects  of  rights  are  to  be  recognized  as  "  those  com- 
modities which  are  eveiywhere  and  by  all  nations  treated  and 
deemed  subjects  of"  property,"  thus  distinguishing  the  true  his- 
torical criterion  by  which  (independently  of  local  statute  or 
custom)  property  may  be  known,  still,  in  that  wliich  imme- 
diately follows,  the  Judge,  virtually,  makes  himself  the  exclu- 
sive arbiter  of  what  may  or  may  not  be  legal  property  ;  saying, 
"  But  it  is  not  speaking  with  strict  accuracy  to  say  that  a 
property  can  be  acquired  in  human  beings  by  local  laws.  Each 
state  may,  for  its  own  convenience,  declare  that  slaves  shall  be 
deemed  property,  and  that  the  relations  and  laws  of  personal 
chattels  shall  be  deemed  to  ap])ly  to  them  ;  as  for  instance, 
that  they  may  be  bought  and  sold,  delivered,  attached,  levied 
upon,  that  trespass  will  lie  for  an  injury  done  to  them  or  trover 
for  converting  them.  But  it  would  be  a  perversion  of  terms  to 
say  that  such  local  laws  do  in  fact  make  them  personal  property 
generally  ;  they  can  determine  that  the  same  rules  of  law  shall 
apply  to  them  as  are  applicable  to  property,  and  this  effect  will 
follow  only  so  far  as  such  laws  'proprlo  vigore  can  operate." 

It  is  evident  that,  in  this  instance,  either  a  very  distin- 
guished jurist  and  judge  of  the  largest  judicial  experience  asserts, 
in  contradiction  to  the  history  of  the  world,  that  it  is  morally 
impossible  that  a  human  being  should  be  property  by  the  law  of 
any  country,  or  else,  if  his  argument  recognizes  a  universal  law 
independent  of  his  individual  judgment,  the  argument  is  a  pe- 


FROM   DEFICIENCY   OF   TERMS.  581 

titio  principii.  For  the  question  then  being,  are  slaves  property 
by  a  local  law,  or  are  they  property  by  the  universal  law  ?— the 
judge  finds  the  answer  by  saying,"  if  they  be  considered  property 
by  uuiversal  law,  they  would  be  slaves  everywhere  ;  they  would 
be  slaves  in  Massachusetts  ;  therefore  they  are  property  by  a 
local  law,  and  not  by  the  universal.^ 

§  528.  A  similar  identification  of  the  universal  law  with  the 
moral  judgment  of  the  individual  jurist  occurs  in  the  speech  of 
Senator  Benjamin,  already  referred  to,  when  replying  to  a  pas- 
sage in  the  speech  of  Mr.  Collamer,  of  Vermont,  on  the  same 
subject,  3  the  whole  of  whose  argument,  he  says,  "  ingeniously  as  it 

'  See  the  last  paraOTaph  in  §  511.  .,,,<•         xi    i.  v 

'  To  the  idea  that  tlie  universal  law,  which  is  distingnishable  from  that  pecuhar 
to  single  states  or  nations,  is  not  at  tlie  same  time  known  as  a  rule  set  or  hud  down, 
Cpositum,  ius  constitutum.  ante,  ^  17.)  by  any  judical  criterion  of  the  will  of  the  so^- 
ereicrn  di^tinfiuishable  from  the  individual  moral  sense  of  the  judge,  may  also  be  as- 
cribed the  remark  on  page  215  of  the  same  report :  ''That  slave.^'  is  a  relation  fouKdei 
on  force,  not  in  right,  existing  where  it  does  exist,  by  force  of  positive  law  and  not  re- 
cognized as  founded  in  natural  right,  is  intimated  by  the  definition  of  slavery  in  the 
civil  law  Servitus  est  constitutio  juris  gentium  qua  qnis  domimoalieno  contra  na- 
turam  subiicitur."  But  this  jus  gentium  is  the  very  criterion  of  what  a  judge  may 
reco-nize  as  a  rule  of  universal  law;  and  is  to  be  received  whether  contrary  to  natural 
law  or  not.  That,  by  it,  slaverv  is  not  now  judicially  recognized  in  Massachusetts,  as 
formeriy,  in  the  case  of  imported  heathen  negroes,  is  not  owin^  to  the  better  ac- 
quaintance of  the  judges  with  the  law  of  nature,  but  to  the  fact  that  there  is  now  no 
rule  of  universal  jurispradence,  jus  gentium,  to  support  the  master  s  right.  _ 

»  The  portion  of  Senator  CoUamer's  speech  to  which  Senator  Benjamm  refers,  is  as 
follows  •  "  I  do  not  say  that  slaves  are  never  property.  I  do  not  say  that  they  are,  or 
are  not.  Within  the  limits  of  a  State  which  declares  them  to  be  property  they  are 
property,  because  they  are  within  the  jurisdiction  of  that  government  which  makes 
the  declaration  ;  but  I  should  wish  to  speak  of  it  in  the  hght  ot  a  member  of  the  I  nited 
States  Senate,  and  in  the  language  of  the  United  States  Constitution.  If  t  ns  be  prop- 
erty in  the  States,  what  is  the  nature  and  extent  of  it?  I  insist  that  the  Supreme 
Court  have  often  decided,  and  every  body  has  understood,  that  slavery  is  a  local  insti- 
tution existin*^  by  force  of  State  law;  and  of  course  that  law  can  give  it  no  possible 
character  beyond  the  limits  of  that  State.  I  shall,  no  doubt,  find  the_  idea  better  ex- 
pressed in  the  opinion  of  Judge  Nelson,  in  this  same  Dred  Scott  decision.  I  prefer  to 
read  his  language.     He  declares:  ^  ,  .     •  j-  i.-         %v,;„ 

"  '  Every  State  or  nation  possesses  an  exclusive  sovereignty  and  jurisdiction  wntmn 
her  ov\-n  territory,  and  her  laws  affect  and  bind  all  property  and  persons  residing  vnthm 
it  It  may  reo^ulate  the  manner  and  circumstances  under  which  property  is  held  and 
the  condition,  capacity,  and  state  of  all  persons  therein ;  and  also  the  remedy  and  the 
modes  of  administering  justice.  And  it  is  equally  tme  that  no  State  or  nation  can 
afifect  or  bind  property  out  of  its  territory,  or  persons  not  residing  within  it.  JSo  State, 
therefore  can  enact  laws  to  operate  beyond  its  own  dominions;  and  it  it  attempts  to 
do  so,  may  be  lawfully  refused  obedience.  Such  laws  can  have  no  authority  extra- 
territorialiy.  This  is  the  necessary  result  of  the  independence  of  distinct  and  separate 
sovereignties.'     [19  Howard,  p.  4C0.]  .  ,.  ci.  * 

"  Here  is  the  law ;  and  under  it  exists  the  law  of  slavery  in  the  different  States 
By  virtue  of  this  very  principle  it  cannot  extend  one  inch  beyond  its  own  territorial 
imits.  A  State  cannot  regulate  the  relation  of  master  and  slave,  of  owner  and  prop- 
erty', the  manner  and  title  of  descent,  or  anything  else,  one  inch  beyond  its  territory. 


582  DEFICIENCY    OF    TERMS 

is  put,  rests  upon  this  fallacy,  if  I  may  say  so  with  due  respect 
to  him,  that  a  man  c&nnot  have  title  in  property  wherever  the 
law  does  not  give  him  a  remedy  or  j^roccss  for  the  assertion 
of  his  title  ;  or,  in  other  words,  his  whole  argument  rests  upon 
the  old  confusion  of  ideas  which  considers  a  man's  right  and  his 
remedy  to  he  one  and  the  same  thing.  I  have  already  shown 
to  you,  by  the  passages  I  have  cited  from  the  opinions  of  Lord 
Stowell  and  of  Judge  Story,  how  they  regard  this  subject.  They 
say  that  the  slave  who  goes  to  England,  or  goes  to  Massachu- 
setts, from  a  slave  State,  is  still  a  slave,  that  he  is  still  his 
master's  property  ;  but  that  his  master  has  lost  control  over 
him,  not  by  reason  of  the  cessation  of  his  property,  but  because 
those  States  grant  no  remedy  to  the  master  by  which  he  can 
exercise  his  control. 

"  There  are  numerous  illustrations  upon  this  point,  illustra- 
tions furnished  by  the  copyright  laws,  illustrations  furnished  by 
patent  laws.  Let  us  take  a  case  ;  one  that  aj^peals  to  us  all. 
There  lives  now  a  man  in  England  who  from  time  to  time  sings 
to  the  enchanted  ear  of  the  civilized  world  strains  of  such 

Then  you  cannot,  by  virtue  of  the  law  of  slavery,  if  it  makes  slaves  property  in  a 
State,  if  you  please,  move  that  property  out  of  the  State.  It  ends  whenever  you  pass 
from  that  State.  You  may  pass  into  another  State  that  has  a  like  law,  and  if  you  do, 
you  hold  it  by  virtue  of  that  law ;  but  the  moment  you  pass  beyond  the  limits  of  the 
slave-holding  States,  all  title  to  the  property  called  property  in  slaves,  there  ends. 
Under  such  a  law  slaves  camiot  be  carried  as  property  into  the  Territories  or  any- 
where else  beyond  the  States  authorizing  it.  It  is  not  property  anywhere  else.  If 
the  Constitution  of  the  United  States  gives  any  other  and  further  character  than  this 
to  slave  property,  let  us  acknowledge  it  fairly  and  end  all  strife  about  it.  If  it  docs 
not,  I  ask,  in  all  candor,  that  men  on  the  other  side  shall  say  so,  and  let  this  point  be 
settled.  What  is  the  point  we  are  to  inquire  into?  It  is  this  :  does  the  Constitution 
of  the  United  States  make  slaves  property  beyond  the  jurisdiction  of  the  States  author- 
izing slaverj'?  If  it  only  acknowledges  them  as  property  within  that  jurisdiction,  it 
has  not  extended  the  property  one  inch  beyond  the  State  line  ;  but  if,  as  the  Supreme 
Court  seems  to  say,  it  does  recognize  and  protect  them  as  property  further  than  State 
limits,  and  more  than  the  State  laws  do,  then,  indeed,  it  becomes  like  other  property. 
The  Supreme  Court  rest  this  claim  upon  this  clause  of  the  Constitution :  '  No  person 
held  to  service  or  labor  in  one  State  under  the  laws  thereof,  escaping  into  another, 
shall,  in  consequence  of  any  law  or  regulation  therein,  be  discharged  from  such  service 
or  labor,  but  shall  be  delivered  up  on  claim  of  the  party  to  whom  such  service  or  labor 
may  be  due.'  Now  the  question  is,  does  that  guarantee  it  ?  Does  that  make  it  the  same  as 
other  property  ?  The  very  fact  that  this  clause  makes  provision  on  the  subject  of  per- 
sons bound  to  service,  shows  that  the  framers  of  the  Constitution  did  not  regard  it  as 
other  property.  It  was  a  thing  that  needed  some  provision,  other  property  did  not. 
The  insertion  of  such  a  provision  shows  that  it  was  not  regarded  as  other  property.  If 
a  man's  horse  stray  from  Delaware  into  Pennsylvania,  he  can  go  and  get  it.  Is  there 
any  provision  in  the  Constitution  for  it?  No.  How  came  this  to  be  there,  if  a  slave 
is  property  ?     If  it  is  the  same  as  other  property,  why  have  any  provision  about  it  ?" 


IN   DEFINING   PROPERTY.  583 

melody  that  the  charmed  senses  seem  to  abandon  the  grosser 
regions  of  earth,  and  to  rise  to  purer  and  serener  regions  above. 
God  has  created  that  man  a  poet.  His  inspiration  is  his  ;  his 
songs  are  his  by  right  divine  ;  they  are  his  property,  so  recog- 
nized by  human  law.  Yet  here  in  these  United  States  men 
steal  Tennyson's  works  and  sell  his  property  for  their  profit  ; 
and  this  because,  in  spite  of  the  violated  conscience  of  the  na- 
tion, we  refuse  to  give  him  protection  for  his  property. 

"  Examine  your  Constitution  ;  are  slaves  the  only  species  of 
property  there  recognized  as  requiring  peculiar  protection  ?  Sir, 
the  inventive  genius  of  our  brethren  of  the  North  is  a  source  of 
vast  wealth  to  them  and  vast  benefit  to  the  nation.  •••"  *  *  On 
what  protection  does  this  vast  property  rest  ?  Just  upon  that 
same  constitutional  protection  which  gives  a  remedy  to  the  slave- 
owner when  his  property  is  also  found  outside  of  the  limits  of 
the  State  in  which  he  lives.  Without  tliis  protection  what 
would  be  the  condition  of  the  northern  inventor  ?  Why,  sir, 
the  Vermont  inventor  protected  by  his  own  law  would  come  to 
Massachusetts,  and  there  say  to  the  pirate  who  had  stolen  his 
property,  '  render  me  up  my  property  or  pay  me  value  for  its 
use,'  The  Senator  from  Vermont  would  receive  for  answer,  if 
he  were  counsel  for  the  Vermont  inventor,  '  Sir,  if  you  want 
protection  for  your  property,  go  to  your  own  State  ;  property  is 
governed  by  the  laws  of  the  State  witliin  whose  jurisdiction  it  is 
found  ;  you  have  no  property  in  your  invention  outside  of  the 
limits  of  your  State  ;  you  cannot  go  an  inch  beyond  it.'  Would 
not  this  be  so  ?  Does  not  every  man  see  at  once  that  the  right 
of  the  inventor  to  his  discovery,  that  the  right  of  the  poet  to  his 
inspiration,  depends  upon  those  principles  of  eternal  justice 
which  God  has  implanted  in  the  heart  of  man,  and  that  wher- 
ever he  cannot  exercise  them  it  is  because  man,  faithless  to  the 
trust  that  he  has  received  from  God,  denies  them  the  protection 
to  which  they  are  entitled." 

Here  it  is  evident  either,  that  it  must  be  first  admitted  that 
legal  property  is  determined  by  the  speaker's  own  idea  of  what 
men  should  own  by  law  or  be  protected  by  law  in  possessing, 
and  depends  upon  his  individual  conception  of  "  those  principles 


/^ 


584  DEFICIENCY    OF    TERMS 

of  eternal  justice  which  God  has  implanted  in  the  heart  of 
man  ; "  or,  else,  that  the  reference  to  copy-rights  and  patent- 
rights  is  singularly  infelicitous  for  the  purposes  of  his  argument. 
For,  by  his  own  admission,  such  rights  are  legal  rights,  i.  e., 
rights  recognized  in  courts  of  law,  only  within  certain  limited 
jurisdictions  ;  and  even  therein  are  not  known  as  property  by 
customary  law,  and  cannot  be  judicially  recognized  as  legal 
rights  in  other  countries  though  made  such  in  some  one  country 
by  its  positive  legislation.  And  yet  Mr.  Benjamin  had  pro- 
posed at  the  outset,  (in  the  extract  first  given,)  to  sliow  "  that 
slavery  was  the  common  law  of  the  thirteen  States  of  the  con- 
federacy at  the  time  they  burst  the  bonds  that  united  them  to 
the  mother  country  ; "  and  the  printed  speech  bears  among  its 
titles,  Slavery  protected  by  the  Common  Law  of  Ihe  New  World  ; 
while  here  slaves  are  classed  with  "  species  of  property  recog- 
nized [by  the  Constitution]  as  requiring  peculiar  protection," 
and  not  even  recognized  by  common  law  in  any  state  or  nation. 

§  529.  The  Senator  to  whom  Mr.  Benjamin  was  replying, 
(Mr.  Collamer,)  had,  in  a  jiart  of  his  argument  which  has  been 
noted,  instanced  horses,  as  objects  of  the  action  of  legal  persons 
which,  when  they  are  objects  of  rights,'  can  be  nothing  else  than 
property.  And,  assuming  it  to  ba  admitted  that  the  Consti- 
tution recognizes  some  objects  of  rights  as  being  property,  he 
argued  that  the  existence  of  special  provisions,  protecting  rights 
in  respect  to  slaves,  proves  that  they  are  not  recognized  as  prop- 
erty even  when  they  are  regarded  as  objects  of  rights.  But  his 
argument  indicated  no  standard  by  which  to  prove  that  horses 
are  property,  more  than  are  other  objects  of  rights.  Hence, 
Mr.  Benjamin,  in  a  passage  immediately  following  the  last  ex- 
tract from  his  speech,  impeaches  the  argument  on  the  ground, 
apparently,  that  horses  are  known  to  be  property  only  by  the 
same  juridical  evidence  which  shows  slaves  to  be  property.  He 
remarks  : 

"  Sir,  follow  out  the  illustration  which  the  Senator  from 
Vermont  himself  has  given  ;  take  his  very  case  of  the  Delaware 
owner  of  a  horse,  riding  him  across  the  line  into  Pennsylvania. 

'  For  this  use  of  terms,  see  ante,  §§  21-24. 


IN    DEFINING   PROPERTY.  585 

The  Senator  says  :  '  Now,  you  see  that  slaves  are  not  property 
like  other  property  ;  if  slaves  were  property  like  other  property, 
why  have  you  this  special  clause  in  your  Constitution  to  protect 
a  slave  ?  You  have  no  clause  to  protect  the  horse,  because 
horses  are  recognized  as  property  everywhere/  Mr.  President, 
the  same  fallacy  lurks  at  the  bottom  of  this  argument,  as  of  all 
the  rest.  Let  Pennsylvania  exercise  her  undoubted  jurisdiction 
over  persons  and  things  within  her  boundary  ;  let  her  do  as  she 
has  a  perfect  right  to  do,  declare  that  hereafter,  within  the  State 
of  Pennsylvania,  there  shall  be  no  property  in  horses,  and  that 
no  man  shall  maintain  a  suit  in  her  courts  for  the  recovery  of 
property  in  a  horse ;  and  where  will  your  horse-owner  be  then  ? 
Just  wliere  the  English  poet  is  now ;  just  where  the  slave- 
holder and  the  inventor  would  be  if  the  Constitution,  foreseeing 
a  difference  of  opinion  in  relation  to  rights  in  these  subject  mat- 
ters, had  not  pro^dded  the  remedy  in  relation  to  such  property 
as  might  easily  be  plundered.  Slaves,  if  you  please,  are  not 
property  like  other  property  in  this,  that  you  can  easily  rob  us  of 
them  ;  but  as  to  the  rigJii  in  them,  that  man  has  to  overthrow 
the  whole  histoiy  of  the  world,  he  has  to  overthrow  every  treatise 
on  jurisprudence,  he  has  to  ignore  the  common  sentiment  of 
mankind,  he  has  to  repudiate  the  authority  of  all  that  is  con- 
sidered sacred  with  man,  ere  he  can  reach  the  conclusion  that 
the  person  who  owns  a  slave,  in  a  country  where  slavery  has 
been  estabhshed  for  ages,  has  no  other  property  in  that  slave 
than  the  mere  title  which  is  given  by  the  statute  law  of  the 
land  where  it  is  found." 

It  appears  that  both  Senators  were  arguing  on  the  supposition 
that  the  Constitution  protects  some  rights  of  private  persons,  or 
rights  of  private  persons  in  respect  to  some  objects,  as  riglits  in 
respect  to  propei^ty  ;  but  that,  to  determine  whether  either  horses 
or  slaves,  or  both  horses  and  slaves,  or  neither  horses  nor  slaves, 
are  property,  neither  Senator  designated  any  other  standard  than 
either  the  legislative  will  of  some  State  of  the  Union  or  his  own 
individual  judgment.  And  for  the  reason,  ajiparently,  that  while 
each  had  in  mind  the  idea  of  a  universal  jurisprudence,  entirely 
distinct  from  their  own  several  judgments,  they  had  no  terms  by 


586  stowell's  and  story's  authority. 

which  to  distinguish — Ist,  that  part  of  positive  law  which, 
whether  customary  or  statute,  all  equally  originates  in  the 
several  legislative  (juridical)  action  (jf  a  single  state  or  pos- 
sessor of  sovereign  power,  jus  proprium,  and  2d,  that  part  of 
positive  law  which,  being  customary  or  unwritten,  differs  from 
every  i)art  of  the  former  by  being  attributable  to  the  legislative 
(juridical)  action  of  all  or  many  states  or  possessors  of  sovereign 
power,  jus  gentium.  And  to  the  same  want  of  proper  terms  are 
attributable  the  contradictions  observable  in  the  judicial  deter- 
mination of  these  questions.^ 

§  530.  In  the  extract  given,  Senator  Benjamin  has  referred 
to  Lord  Stowell  and  Judge  Story  as  authorities  for  the  juristical 
contradiction  in  terms,  that  a  natural  person  may  be  property 
in  a  place  where  the  law  allows  no  one  to  treat  him  as  such,  nor 
allows  any  to  exercise  dominion  over  him.  The  portions  of  Lord 
Stowell's  opinion,  which  were  referred  to,  had  been  given  in 
another  part  of  the  speech.  Their  citation  in  this  connection 
was  probably  an  inadvertence  ;  they  are  to  another  point  ;-  and 
other  parts  of  the  opinion  might,  with  some  propriety,  have 
been  referred  to  for  the  doctrine,  such  as  pp.  100,  112,  113,  of 
2  Haggard's  Kep.  And  particularly  page  117,  where  Lord 
Stowell  quotes  Chancellor  Northington's  brief  opinion  in  Shanley 
V.  Harvey,  "  As  soon  as  a  man  sets  foot  on  English  ground  he 
is  free.  A  negro  may  maintain  an  action  against  his  master  for 
ill-usage,  and  may  have  a  habeas  corpus  if  restrained  of  his 

'  Compare  ante,  p.  378,  notes.  Illustrating  Lord  Bacon's  remark  in  De  Augmentis, 
Lib.  v.,  ch.  iv.,  when  defining  the  eidolon  fori,  idol  of  the  market;  Credunt  homines 
rationem  suam  verbis  imperare,  sed  fit  etiam  ut  verba  vim  suam  super  intellectum  re  ■ 
torqueant  et  rcflectant.  "  For  words  generate  words,  however  men  may  imagine  they 
have  coinmi>nd  over  words,  and  can  easily  say  they  will  speak  with  the  vulgar  and 
think  with  the  wise." 

-  The  citations  are,  case  of  the  slave,  Grace,  2  Hagg.  p.  126-128.  In  these 
nothing  else  is  declared  but  that  slavery,  being  in  Antigua  the  effect  of  cui^tomary 
law,  having  been  "  a  very  favored  introduction  into  the  colonies,"'  and  also  introduced 
by  the  mother  country  as  profitable  to  herself,  could  not,  by  any  English  court,  be  re- 
garded as  a  malug  usus  in  the  colony,  and  declared^unlawful  there  on  the  maxim  malus 
usits  abolendus.  The  extract  given  from  Story's  letter  to  Stowell  is,  "  I  have  read  with 
great  attention  your  judgment  in  the  slave  case.  Upon  the  fullest  consideration  which 
I  have  been  able  to  give  the  subject,  I  entirely  concur  in  your  views.  If  I  had  been 
called  upon  to  pronounce  a  judgment  in  a  like  case,  I  should  have  certainly  arrived  at 
the  same  result."  This  result  was,  that  on  returning  to  Antigua  the  woman,  Grace, 
was  there,  by  the  rules  of  private  international  law,  in  the  same  status  of  slavery  in 
which  she  had  been  before  going  to  England. 


LORD    STOWELL'S   ARGUMENT.    '  587 

liberty,"  and,  with  an  ingenuity  that  is  best  designated  ludicrous, 
endeavors  to  extract  from  it  the  recognition  of  slavery  as  co-ex- 
isting with  its  contrary ;  upon  which  idea  to  support  his  judg- 
ment that,  on  returning  to  the  coh)ny,  the  negro  returns  a  slave. 
His  reasoning  involves  the  doctrine,  utterly  inconsistent  with 
every  definition  of  law,  that  while  the  rights  and  obligations  of 
a  natural  person  are  judicially  determinable  by  one  law,  another 
law  producing  effects  incompatible  with  those  rights  and  obli- 
gations may  still  be  operating  on  the  same  person  in  the  same 
jurisdiction/ 

In  another  place,  p.  109,  Lord  Stowell  excepts  to  the  argu- 
ments advanced  by  Hargrave  and  the  reasoning  given  by  Lord 
Mansfield  to  show  that  Somerset  became  free  or  acquired  the 
status  of  a  freeman  by  being  in  England  ;  such  as  the  rhetorical 
phrase  that  "  the  air  of  England  was  too  pure  for  slaves  to 
breathe  in,"  and  those  denials  of  the  ethical  fitness  of  slpveiy 
which,  if  they  were  the  ground  for  declaring  the  slave  free  in 
England,  should,  on  Lord  Mansfield's  and  probably  Lord  Stowell's 

•  Lord  Stowell  would  hardly  have  sympathized  witli  Tennyson  in  praishig  Eng- 
land as  a  land 

"  Where  Freedom  hroadens  slowly  down 
From  precedent  to  precedent." 

2  Hairg.  117;  "The  Lord  Chancellor  Northington,  in  dismissing  the  hill  with 
costs,  said,  that  as  soon  as  a  man  sets  foot  on  Englisli  ground  he  is  free.  It  must  be 
observed  that  this  was  the  first  time,  probably,  that  tbis  doctrine  was  so  broadly  stated 
in  an  English  court,  and.  perliaps,  a  little  prematurely ;  but  it  must  likewise  be  ob- 
served tlcat  his  Lordship  here  mentions  only  two  effects  of  it,  for  he  adds,  -A  negro 
may  maintain  an  action  against  his  master  for  ill-usage  and  may  liave  a  hnbens  corpus 
if  restrained  of  his  liberty  '  This  is  an  instance  in  wliich  the  law  of  England  differed 
essentially  from  the  law  of  the  slave  code  in  the  West  India  colonies,  for  there  every 
acquisition  by  the  slave,  whether  by  legacy  or  otherwise,  went  to  the  master,  but  not 
so  here,  where  the  law  of  England  adjudged  it  to  the  slave.  And  tlie  Lord  Chancellor 
enumerates  another  dififeience,  which  is,  that  the  law  of  England  empowered  the  slave 
to  brin"  an  action  against  his  master  for  ill  treatment.  15oth  of  tliese  are  direct  con- 
tradictious to  the  rules  of  the  slave  code;  but  nobo  ly  could  infer  from  thence  that  the 
whole  of  the  slave  code  was  by  that  decision  intended  to  be  vacated  in  the  cidonies  on 
that  account.  The  error  ot  the  opinion  seems  to  be,  that  because  the  slave  code  was 
overruled  in  England,  where  the  law  of  England  difi'ered  from  it,  it  was  tlienfore  ab- 
rogated in  the  colonies  in  ioto.  The  slave  continues  a  slave,  though  the  law  of  Eng- 
land relieves  him  in  those  respects  from  the  rigors  of  that  code  while  he  is  in  England, 
and  that  is  all  that  it  does.  With  res-pect  to  other  severities  wliich  it  refuses  to  inflict 
it  is  .syn/i/s  <h  plnribiis  una,  wliich  docs  in  t  at  all  di^lodge  the  other  severities  of  that 
code,  all  of  wliich  he  may  avoid  by  continuing  in  tlii-i  country."  In  the  case  before 
Northington,  nothing  could  be  decided  about  the  colony,  and  nothing  was  said  about 
it.  See  ante,  ^  187.  To  make  out  "the  error  of  the  opinion,"  Lord  Stowell  supposes 
that  the  existence  of  slavery  in  the  colony  was  questioned  by  it. 


588  FUNCTIONS    OF    THE    GOVERNMENT 

theory  of  the  foundation  of  colonial  law,'  have  made  slavery  un- 
lawful in  the  colony.  But  in  the  same  place  he  admits  the 
application  of  the  argument,  that,  even  if  it  was  not  shown  how 
the  slave  became  invested,  in  England,  with  the  rights  of  a 
freeman,  there  was  on  the  other  hand  no  law  in  England  to  sup- 
port the  master's  claims  while  there  ;  or,  that  since  the  law  gave 
him  no  local  remedy  the  law  attributed  to  him  no  lesxal  ii<rht. 
"  The  arguments  of  counsel  do  not  go  further  than  to  establish 
that  the  methods  of  force  and  violence  which  were  necessary  to 
maintain  slavery  were  not  practicable  in  this  spot  ;  and  Mr. 
Hargrave,  almost  in  direct  terms,  asserts  that  they  cannot  go 
beyond  it."  This  is  the  doctrine  which  Lord  Stowell  docs  not 
venture  to  impeach ;  the  doctrine  recognized  by  Lord  Mansfield 
when  he  said  of  the  detention  exercised  by  the  master,  "  So 
high  an  act  of  dominion  must  be  recognized  by  the  law  of  the 
country  where  it  is  used,"  and,  because  it  was  not  so  recognized, 
added,  "  the  black  must  be  discharged."*^  This  is  the  doctrine 
that  where  the  law  gives  no  remedy  the  law  recognizes  no  right; 
the  doctrine  asserted  by  Mr.  Collamer,  and  designated  by  Mr. 
Benjamin,  a  "  fallacy." 

§  531.  On  the  principle  that  Congress  cannot  legislate  where 
no  power  is  granted  by  the  Constitution,  Judge  McLean  denies 


'  Anfe,  pp.  374-376. 

^  Ante,  p.  191.  Lord  Stowell's  position  resembled  that  of  Lord  Mansfield,  in  Som- 
erset's case;  he  was  unable  to  find  the  judicial  reason  for  a  judgment  which  may  prob- 
ably be  justified  on  the  distinctions  of  domicil  whiidi  were  stated,  ante,  pp.  384-386. 

As  has  been  remarked,  ante,  p.  37'.',  and  note  3,  the  opinion  seems  to  have  ob- 
tained at  one  time,  among  English  lawyers,  that  though  the  slave  was  no  longer  prop- 
erty in  England  for  which  trover  would  lie,  yet  the  master's  right  to  perpetual  service 
might  continue.  Though  this  doctrine  was  clearly  against  tlie  authorities  even  before 
Somerset's  case,  it  may  have  been  the  basis  of  Lord  Stowell's  opinion.  Blackstone, 
1  Comm.  p.  424.  "  And  now  it  is  laid  down  that  a  slave  or  negro,  the  instant  he 
lands  in  England  becomes  a  freeman ;  that  is  the  law  will  protect  him  in  the  enjoyment 
of  his  person  and  his  property.  Yet  with  regard  to  any  right  which  the  master  may 
have  lawfully  acquired  to  the  perpetual  service  of  John  or  Thomas,  this  will  remain 
exactly  in  the  same  state  as  before  ;  for  this  is  no  more  than  the  same  state  of  subjection 
for  life  which  every  apprentice  submits  to  for  the  space  of  seven  years  or  sometimes 
for  a  longer  tenn."  Mr.  Christian  notes  that  "  the  meaning  of  this  sentence  is  not  very 
intelligible,"  and  denies  the  validity  of  any  contract  made  by  the  slave  to  serve  for  life. 
Blackstone  also  says,  "  whatever  service  the  heathen  negro  owed  of  right  to  his  owner 
or  master,  by  general,  not  local  law,  the  same,  whatever  it  may  be,  he  is  bound  to 
render  when  brought  to  England  and  made  a  Christian."  But,  as  has  been  sho^vn, 
there  is  no  service  due  by  "general  law"  when  the  slave  is  no  longer  a  chattel  jinre 
gentium. 


IN    THE   TERRITORIES.  589 

that  Congress  may  legalize  slavery  by  statute,'  But  on  the 
same  principle  it  would  seem  that  freedom  could  not  he  legalized 
by  statute.  Mr.  Justice  Nelson,  in  his  opinion  in  Dred  Scott's 
case,  19  Howard,  464,  says  :  "If  Congress  possesses  the  power 
under  the  Constitution  to  abolish  slavery  in  a  Territory,  it  must 
necessarily  possess  the  like  power  to  establish  it.  It  cannot  be 
a  one-sided  power,  as  may  suit  the  convenience  or  particular 
views  of  the  advocates.  It  is  a  power,  if  it  exists  at  all,  over 
the  whole  subject."  Judge  McLean  finds  the  legislative  power 
to  establish  slavery  "  prohibited  by  the  Constitution  or  contrary 
to  its  spirit."  The  same,  if  true,  should  prevent  the  executive 
and  judiciary  created  by  the  Constitution  from  recognizing  or 
maintaining  slavery  under  laws  already  existing  in  the  Territo- 
ries. But  it  is  by  resorting  to  the  spirit  of  the  Constitution 
that  Judge  Campbell  invests  the  national  legislature  and  the 
national  judiciary  and  executive  with  the  power  and  duty  of  ex- 
tending and  maintaining,  in  the  Territories,  the  laws  of  the 
slave-holding  States. 

Legal  rights  and  obligations  exist  only  by  the  co-operation 
of  the  three  functions  of  sovereign  power.  The  reasoning  of 
more  than  one  member  of  the  Supreme  Court,  in  Dred  Scott's 
case,  involves  the  doctrine  that  rights  and  obligations  incident 
to  the  status  of  persons  are  maintained,  in  the  Territories,  by 
the  executive  and  judicial  functions  held  by  the  national  Gov- 
ernment, while  the  legislative,  or,  more  correctly,  the  juridical 
function,  by  which  those  rights  and  obligations  are  determined, 
is  not  invested  in  any  body  ;  but  remains  in  nubihus  until  a  new 
State  of  the  Union  is  created  which  may  assume  it. 

§  532.  Whatever  power  the  national  Grovernment  may,  of 
right,  exercise  in  the  Territories  has  either  been  expressly  or  im- 
pliedly granted  by  the  words  of  the  Constitution,  or  it  has  not 
so  been  granted. 

It  must  be  admitted  that  the  Constitution  grants  to  the 
executive  and  judiciary  created  by  it  power  to  maintain  and 
enforce  only  such  rights  and  obligations  as  are  referable  to  the 

'  19  Howard,  532,  and  ante,  p.  542. 


590  POWERS  OF  THE  GOVERNMENT. 

law  of  the  United  States,  that  is,  a  rule  resting  on  the  juridical 
will  of  the  people  of  the  United  States,  the  authors  of  the  Con- 
stitution. 

Now  the  only  law  of  the  United  States,  affecting  private  per- 
sons, which  is  described  or  referred  to  in  the  Constitution  is 
either  law  contained  in  the  Constitution  itself,  or  derived  either 
from  the  legislation  of  Congress  or  from  the  treaty-making 
power '  held  by  the  President  and  Senate.'^  And,  if,  as  is  com- 
monly said,  there  can  he  no  other  law  of  tlie  United  States,  or 
rule  identified  with  the  juridical  will  of  the  peo})le  of  the  United 
States,^  it  would  appear  that  the  rights  and  obligations  of  pri- 
vate persons  which  may  be  maintained  ))y  the  executive  and  ju- 
dicial functions  of  the  national  Government,  in  virtue  of  power 
granted  in  the  Constitution,  are  only  such  as  are  determinable 
and  determined  by  one  of  these  three  indicators  of  the  national 
will. 

The  Constitution  gives  the  executive  and  judiciary  created 
by  it  power  to  enforce  rights  and  obligations  created  by  the 
law  of  a  State  of  the  Union  only  in  certain  specified  cases  ; 
when,  by  the  provisions  of  the  Constitution  taking  effect  as  pri- 
vate law,  those  rights  and  obligations  become  actually  efiects  of 
the  national  law.^  Now,  even  admitting  that  the  several  legis- 
lative or  juridical  power  of  a  State  of  the  Union  may  determine 
the  status  of  persons  domiciled  in  the  Territory  (Judge  Camp- 
bell's theory),  the  Constitution  does  not  grant  to  the  national 
executive  and  judiciary  the  power  of  maintaining,  in  such  case, 
the  rights  and  obligations  which  would  be  created  by  the  State 
law.  If  then  the  rights  and  obligations  incident  to  the  status 
of  persons  in  the  Territories  are  not  fixed  by  the  private  law  of 
the  Constitution,  nor  by  legislative  power  exercised  in  the  con- 
clusion of  a  treaty,  nor  by  legislative  power  exercised  by  Con- 

'  Ante,  pp.  480,  481.  2  Const.  Art.  II.  sec.  2. 

'  Curtis'  Comm.  §  19.  ''  The  law  of  the  United  States  is  to  be  found  in  the  Con- 
stitution and  the  Acts  of  Congress  passed  in  pursuance  of  it,"  citing  Wheaton  v.  Peters, 
8  Peters,  '^d\.  It  is  difficult  to  say  how  far  rights  and  obligations  in  relations  between 
private  persons  can  be  judicially  recognized  under  a  treaty  alone,  independently  of  the 
principles  of  private  international  law  which  would  operate  where  dominion  had  been 
acquired  without  a  treaty.     This  question  is  to  be  further  considered  hereinafter. 

*  Ante,  §  445. 


POWER    IN    THE    TERRITORIES.  591 

gress,  it  follows  that  the  executive  and  judicial  functions  of 
the  national  Government  cannot  be  appHed  to  maintain  such 
rights  and  obligations  in  virtue  of  any  grant  of  power,  con- 
tained in  the  Constitution,  to  the  national  executive  and  ju- 
diciary. 

§  533.  And  if  these  functions  of  sovereign  power,  the  exec- 
utive and  judicial  functions,  may  be  exercised  by  the  national 
Government  to  maintain  in  the  Territories  any  rights  and  obli- 
gations of  private  persons,  not  determined  by  the  private  law 
of  the  Constitution  nor  ascribable  to  an  exercise  of  juridical 
powder  in  some  treaty,  there  are  only  two  theories  or  views  of 
public  law  on  which  their  exercise  can  be  justified.  Either  the 
legislative  or  juridical  power  which  determines  those  rights  and 
obligations  has  been  granted  to  Congress  in  the  Constitution, 
(being  limited  by  the  Constitution  operating  as  a  bill  of  rights,) 
or  else  the  three  functions  of  sovereign  power  are,  in  reference 
to  the  Territories,  held  by  the  national  Government  as  an  in- 
tegral political  personality,  representing  the  people  of  the  United 
States,  independently  of  separate  grants  of  power  in  the  written 
Constitution  to  its  executive,  legislative,  and  judiciary  depart- 
ments, (being,  nevertheless,  limited  by  the  Constitution  oper- 
ating as  a  bill  of  rights,)  and  the  rights  and  obligations  main- 
tained and  enforced  by  the  executive  and  judicial  functions, 
held  by  that  Government,  are  derived  from  or  dependent  on  the 
legislative  (juridical)  power  held  by  Congress. 

There  is  certainly  no  consistency  in  denying  the  legislative 
power  of  Congress  over  the  rights  and  obligations  incident  to  the 
status  of  persons  in  the  Territories,  by  alleging  that  the  power 
to  create,  establish,  or  determine  such  rights  and  obHgations, 
has  not  been  granted,  while  at  the  same  time  the  exercise  of 
executive  and  judicial  power,  in  reference  to  the  same  subject, 
is  maintained  ;  though  equally  unsupported  by  any  grant  in  the 
Constitution.  For  whether  the  executive  and  judicial  functions 
are  employed  to  enforce  a  rule  derived  from  statute  or  from  un- 
written jurisprudence,  and  whether  the  rule  enforced  by  tbem 
was  or  was  not  first  promulgated  by  Congress,  the  juridical 
38 


592  FREEDOM  OR  ITS  CONTRARIES 

power  of  the  nation  is  as  much  exercised  in  one  case  as  in  the 
other, ' 

Whether  the  power  to  determine  the  status  or  condition 
of  private  persons  in  the  Territories  has  or  has  not  been 
granted  to  Congress,  by  the  Constitution,  in  terms,  there  is  but 
one  conclusion  ;  either  Congress  has  the  power,  (limited  only 
by  the  Constitution  operating  as  a  bill  of  rights,)  or  else  the 
executive  and  judicial  functions  of  the  national  Government  can- 
not be  exercised  in  reference  to  rights  and  obligations  incident 
to  the  status  or  condition  of  such  persons.  In  other  words,  either 
the  rights  and  obligations  incident  to  status  in  the  Territories 
are  maintained  by  the  three  functions  of  sovereignty  held  by  tlie 
Government  created  by  the  Constitution,  (limited  only  by  the 
Constitution  operating  as  a  bill  of  rights  and  as  private  law,)  or 
else  they  are  maintained  by  those  functions  invested  in  some 
other  depositary  or  possessor  of  sovereign  power. 

A  judge  adopting  any  other  theory  for  the  action  of  the  ex- 
ecutive and  judiciary,  in  reference  to  the  subject,  must  himself 
virtually  assume  the  legislative  (juridical)  power  which  he  de- 
nies to  Congress.^ 

§  534.  The  attribution  of  relative  rights  is  possible  only 
under  particular  circumstances  of  natural  condition,  or  circum- 
stances in  which  it  is  not  necessary  that  all  persons  should  be 
found,  and  those  rights,  therefore,  are  not  necessarily  either 
attiibuted  or  denied  to  each  person  under  positive  law.  But  all 
natural  persons  are  in  circumstances  in  which  individual  rights 
and  capacity  for  relative  rights  may  be  attributed  to  them,  and 
each  person  under  positive  law  must  be  either  a  legal  person,  by 
the  attribution  of  those  rights  and  that  capacity,  or  be  a  chattel 
or  thing,  by  being  only  the  legal  object  of  rights  attributed  to 
other  natural  persons. 

'  See  North  Am.  Rev.,  April,  1858,  p.  477,  in  an  article  on  Duer's  Constitutional 
Jurisprudence. 

-  Compare  the  language  of  Mr.  Justice  Curtis,  in  19  Howard,  620,  621,  {ante, 
p.  547,  548,)  concluding :  "  we  are  under  the  government  of  individual  men,  who  for 
the  time  being  have  the  power  to  declare  what  the  Constitution  is,  according  to  their 
own  views  of  what  it  ought  to  mean.  When  such  a  method  of  intei-pretatiou  of  the 
Constitution  obtains,  in  place  of  a  republican  Government,  with  limited  and  dafined 
powers,  we  have  a  Government  which  is  merely  an  exponent  of  the  will  of  Congress ; 
or  what,  in  my  opinion,  would  not  be  preferable,  an  exponent  of  the  individual  political 
opinions  of  tfie  members  of  this  court." 


ARE    NECESSARILY    EXTENDED.  593 

Although  no  legal  right  is  herein  supposed  to  exist  of  neces- 
sity or  by  a  natural  law,  intle})endently  of  positive  law  as  herein 
defined,  yet  individual  riglits  are,  in  this  sense,  natural  or  pri- 
mordial, that,  wherever  a  natural  person  exists  in  a  state-  or 
organized  ci\'il  society,  these  rights  must  either  be  legally  at- 
tributed to  him  or  be  denied  by  the  maintenance  of  antagonistic 
rights  in  others.  And  since  status  or  personal  condition  consists 
in  the  attribution  or  denial  of  individual  rights  and  capacity  for 
relative  riglits,  a  status  of  freedom  or  of  some  of  its  contraries  is 
necessarily  attributed  to  each  person  living  under  positive  law.' 

The  rights  of  masters  immigrating  with  slaves  into  the 
Territories  may  be  there  maintained,  as  they  existed  under  the 
law  of  their  State  domicil,  by  enforcing  obligations  correlative 
to  those  rights  on  the  part  of  the  slaves  and  of  all  other  per- 
sons ;  or  those  rights  may  be  disallowed,  and  the  slaves  placed 
in  different  relations  towards  their  former  masters  and  other 
persons.  But  either  the  national  juridical  power  must  be  mani- 
fested in  the  Territories,  in  the  maintenance,  by  the  executive  and 
judicial  functions  of  the  national  Government,  of  those  rights 
and  obligations  by  whose  realization  status  or  personal  condition 
exists,  or  else  the  sovereign  power  of  determining  status  or 
condition  must  be  abandoned  to  whomsoever  may  there  have 
the  force  to  maintain  those  obligations  for  themselves  and  others. 

Of  necessity,  therefore,  whether  Congress  should  bx  should 
not  legislate  on  the  subject,  either  freedom  or  its  contraries  are 
maintained  and  extended  by  the  action  of  the  national  Govern- 
ment in  the  condition  of  every  natural  person  acquiring  a  resi- 
dence in  the  Territories.  And  it  is  absurd  to  say,  that  in  respect 
to  the  extension  or  non-extension  of  slavery  and  freedom  in  the 
territory  of  the  United  States,  the  national  Government  may 
do  neither,'^ 

'  For  this  use  of  terms  compare  ante,  ,§§  40-44. 

"  In  the  address  of  the  Southern  delegates  in  Congress,  to  their  constituents,  Feb. 
1849,  drawn  by  Mr.  Calhoun,  and  published  among  his  Works,  vol.  vi.,  on  pages  301, 
302,  is  the  following  : 

"  The  North  no  longer  respects  the  Missouri  compromise  line,  though  adopted  by 
their  almost  unanimous  vote.  Instead  of  compromise,  they  avow  that  their  determi- 
nation is  to  exclude  slavery  from  all  the  ten-itories  of  the  United  States,  acquired  or  to 
be  acquired ;  and,  of  cour-e,  to  prevent  the  citizens  of  the  Southern  States  from  emi- 
grating with  their  property  iu  slaves  into  any  of  them.     Their  object,  they  allce,  is 


594  REMARKS    ON    INCONSISTENCIES 

§  535.  The  questions,  what  conditions  of  freedom  or  its  con- 
traries may  exist  by  law  in  tlie  Territories,  independently  of 
statute  ;  Avliether  negro  slavery  may  or  may  not  exist  there  by 
law,  and  whether  it  may  be  lawful  or  will  continue  there  in  the 
case  of  slaves  brought  from  the  slave-holding  States  independ- 
ently of  i)ositive  legislative  enactment,  and  to  what  possessors 
of  sovereign  jiower  the  law  affecting  conditions  of  freedom  and 
its  contraries  may  be  ascribed  in  any  one  of  the  several  Terri- 
tories of  the  United  States,  regarded  as  jurisdictions  having  a 
several  local  municipal  law,  as  distinguished  from  the  national 
municipal  law,  are  to  be  considered  in  another  volume,  in  the 
historical  exposition  of  the  laws  of  the  several  jurisdictions  em- 
braced within  the  entire  dominion  of  the  United  States. 

But  if  the  method  of  determining  the  status  of  private  per- 
sons in  the  Territories  which  was  indicated  by  Mr.  Justice 
Campbell  and  supported  to  some  degree  by  Justices  Daniul  and 
Catron,  in  the  passages  cited  from  their  opinions  in  Drcd  Scott's 
case,  is  legitimate,  it  is  evident  that  the  distinction  of  the  laws 
prevailing  within  the  dominion  of  the  United  States  as  being 

to  prevent  the  extension  of  slavery,  and  ours  to  extend  it,  thns  making  the  issue  be- 
tween them  and  us  to  he  the  naked  question,  Shall  slavery  be  extended  or  not  ?  We 
do  not  deem  it  necessary,  looking  to  the  olji'ct  of  this  address,  to  examine  tlie  question 
so  fully  discussed  at  the  last  session,  whether  Congress  has  the  right  to  exclude  the 
citizens  of  t^ie  South  from  emigrating  with  their  property  into  territories  belonging  to 
the  confederated  States  of  the  Union.  What  we  propose  in  this  connection  is,  to  make 
a  few  remarks  on  what  the  North  alleges,  erroneously,  to  be  the  issue  between  us  and 
them. 

"  So  far  from  maintaining  the  doctrine  which  the  issue  implies,  we  hold  that  the 
Federal  Government  has  no  right  to  extend  or  restrict  slavery,  no  more  than  to  est^ib- 
lish  or  abolish  it,  nor  has  it  any  right  whatever  to  distinguish  between  the  domestic 
institutions  of  one  State,  or  section,  and  another,  in  order  to  favor  the  one  and  dis- 
courage the  other.  As  the  federal  representative  of  each  and  all  the  States,  it  is 
bound  to  deal  out,  within  the  sphere  of  its  powers,  equal  and  exact  justice  and  favor 
to  all.  To  act  otherwise,  to  undertake  to  discriminate  between  the  domestic  insti- 
tutions of  the  one  and  another,  would  be  to  act  in  total  subversion  of  the  end  I'or  which 
it  was  established,  to  be  the  common  protector  and  guardian  of  all.  Entertaining  these 
opinions,  we  ask  not,  as  the  North  alleges  we  do,  for  the  extension  of  slavery.  That 
would  make  a  discrhnination  in  our  favor,  as  unjust  and  imcoustitutioual  as  the  dis- 
crimination they  ask  against  us  in  their  favor.  It  is  not  for  them  nor  f  t  the  federal 
Government  to  determine  whether  our  domestic  institution  is  good  or  bad  ;  or  whether 
it  should  be  repressed  or  preserved.  It  belongs  to  us,  and  to  us  only,  to  decide  such 
questions.  "What  then  we  do  insist  on,  is,  not  to  extend  slavery,  but  that  we  shall 
not  be  prohibited  from  emigrating  with  our  property  into  the  Territories  of  the  United 
States  because  we  are  slaveholders  ;  or,  in  other  words,  that  we  shall  not  on  that 
account  be  disfranchised  of  a  privilege  possessed  by  all  others,  citizens  and  foreigners, 
without  discrimination  as  to  character,  profession,  or  color.  All,  whether  savage,  bar- 
barian, or  civilized,  may  freely  enter  and  remain,  we  only  being  excluded." 


IN    MR.  JUSTICE    CAMPBELL'S    THEORY.  595 

either  national  or  local  in  extent,  (which  was  made  in  the  tliir- 
teenth  chapter,)  would  be  improper.  The  law  derived  from  the 
separate  or  reserved  powers  of  a  State  of  the  Union  would  be 
improperly  described  as  local  in  respect  to  the  limits  of  the 
State,  if  any  persons  before  domiciled  in  such  State,  were  found 
in  the  Territories.  And  the  law  prevailing  in  a  Territory,  or, 
at  least,  all  law  determining  the  possession  of  individual  rights  ^ 
and  legal  capacity,  would  not  be  local  as  to  the  Territory,  but 
a  variable  aggregate  of  the  laws  of  a  greater  or  less  number  of 
the  States,  having  there  a  personal  extent.  Or  the  only  local 
law  determining  that  class  of  rights  would  be  those  applying  to 
persons  not  known  to  have  been  formerly  domiciled  in  some  one 
of  the  States.  1 

§  536.  And,  since  rights  cannot  be  maintained  except  by  the 
enforcement  of  obligations  existing  correlatively  in  some  relation 
between  persons,  in  supposing  that  the  law  of  a  State  operates 
in  the  Territory  to  determine  the  rights  of  persons  therein  who 
before  had  been  domiciled  in  that  State,  correlative  obligations 
on  the  part  of  persons  in  the  same  Territory,  though  coming  from 
another  State,  are  necessarily  suj)posed  to  be  determined  by  the 
laws  of  the  first.  In  determining  the  various  relations  which 
may  exist  between  the  inhabitants  of  a  certain  forum  or  juris- 
diction, juridical  power  may  be  divided  ;  so  that  some  relations 
are  determinable  by  one  juridical  person  and  others  by  another. 
As,  for  example,  in  each  State  of  the  Union  the  powers  held  by 
the  national  Governinent  and  the  "reserved"  powers  of  the 
State  determine  different  relations.  But  it  is  impossible  that 
in  any  one  relation  the  rights  and  obligations  of  those  between 
whom  it  exists  should  be  respectively  determined  by  different 
legislators.  The  individual  right  of  property  involves  the  ex- 
istence of  obligations  on  the  part  of  the  community  ;  and  the 
right  of  a  slave  owner  in  resjiect  to  his  slave  as  the  object  of  his 
right  of  property,  involves  various  obligations  on  the  part  of 
other  persons  in  the  same  jurisdiction.''     The  doctrine  that  the 

'  And  it  would  .oecm  that  under  that  tiieory  tlie  St.ite  law  would  govern  the  con- 
dition of  <  the  descendants  of  the  emigrants  from  the  States;  carrying  out  the  idea  of 
personal  laws  having  a  heritable  character.     Compare  ante,  §  193. 

2  Compare  ante,  p.  309,  note  1. 


596  CONTEMPLATED    VIEW 

juridical  authority  of  a  State  shall  propria  vigore  uiaintain  the 
rights  of  its  slave-holding  citizens  and  status  of  their  slaves  in 
the  Territory  is,  by  involving  the  determination  of  the  obliga- 
tions of  other  persons  not  coming  from  the  same  State,  incom- 
patible with  the  idea  that  the  laws  of  the  States  may,  in  the 
Territory,  respectively  determine  the  rights  and  obligations  of 
persons  ])reviously  d(nniciled  within  their  several  jurisdictions.' 

§  537.  The  further  exposition  of  the  local  municipal  laws  of 
the  United  States  will  therefore  be  given  in  the  form  of  an  his- 
torical or  chronological  abstract  of  the  various  legislative  enact- 
ments in  and  for  the  several  States,  the  Territories  of  the 
United  States,  &c.,  affecting  personal  condition  or  status  ;  being 
a  continuation  of  the  abstract  of  the  colonial  laws,  having  like 
effect,  which  was  given  in  the  sixth  chapter.  In  this  will  be 
included  a  notice  of  those  provisions  of  the  several  State  Consti- 
tutions which  affect  this  topic  of  private  law.  Where  such 
legislation  refers  to  persons  as  alien  to  the  jurisdiction,  it  will  be 
noticed  in  its  chronological  order  among  the  provisions  of  in- 
ternal law,  the  law  apph'ing  to  resident  or  domiciled  persons. 
Though  its  effect  and  constitutionality,  in  reference  to  the  na- 
tional Constitution,  (national  municipal,  quasi-'mtGrndtional 
law,)  will  be  more  particularly  considered  in  a  se})arate  chapter, 
under  the  head  or  topic  of  that  international  law  which  is  law 
in  the  imperfect  sense,  when  the  several  States  are  regarded  as 
its  subjects,  by  reason  of  their  independent  authority,  and  which 
is,  therefore,  in  each  State,  as  private  law,  or  when  taking  effect 
on  private  persons,  identified  in  authority  with  the  local  muni- 
cipal law  of  that  State. 

§  538.  In  considering  the  various  statutes  and  constitutional 

'  Different  systems  of  laws,  Laving  different  personal  extent,  may  exist  together 
within  the  same  doiniiiion.  Such  laws  may,  historically,  bo  of  different  origin.  But 
while  co-existing  in  some  one  State  or  territorial  jurisdiction,  their  legal  force  or 
authority  is  derived  from  one  and  the  same  soveieign  having  the  power  to  determine 
the  conflict  of  laws  whidi  would  arise,  {Anfr,  pp.  25,  100.)  It  is  a  novel  idea  in 
jurispnidence  that  laws  differing  in  personal  extent,  and  deriving  their  authority  from 
different  sovereigns,  should  co-exist  within  tlie  same  territorial  dominion.  See  Judge 
McLean's  observation,  ante,  p.  .54.").  Judge  CampbeH's  idea,  assuming  that  the  States 
severally  are  sovereign  in  the  Territory,  seems  to  be  that  they  colonize  lands  vacant 
of  law,  and  that  the  citizens  of  each  carry  with  them  the  laws  of  the  mother  State  ;  aa 
the  EngUsh  colonists  brought  the  laws  of  England.     Ante,  p.  11 G. 


OF   THE   LAWS   OF   THE   STATES.  597 

provisions  of  the  several  States,  a  distinction  will  sometimes  be 
noticed  between  such  as  refer  to  persons  and  to  their  relations, 
rights,  and  obligations  as  determined  by  laws  already  existing, 
and  which  are  therefore  to  be  applied  according  to  the  personal 
quality  of  those  laws,  and  provisions  whose  terms  require  a 
broader  application,  or  which  seem  to  attribute  rights  or  obli- 
gations to  all  natural  persons,  irrespectively  of  personal  distinc- 
tions previously  known  ;  which  provisions,  therefore,  may  be 
held  to  be  proclaimed  by  the  supreme  legislating  power  as  uni- 
versal. Since  the  universality  of  a  law,  however,  properly  be- 
comes matter  of  judicial  recognition  only  by  the  application  of 
private  international  law/  the  existence  of  law  having  this  uni- 
versal personal  extent  in  any  State  will  be  more  properly  noticed 
in  considering  the  international  and  gwasi-international  laws  of 
the  United  States,  or,  in  other  words,  the  laws  which  in  each 
State  apply  to  j)ersons  known  as  aliens,  either  to  the  State  alone 
or  to  the  State  and  the  United  States,  that  is,  foreign  and 
domestic  ahens,  according  to  the  phraseology  herein  before 
ado^jted  for  convenience  of  distinction.^ 

§  539.  In  making  this  summary  of  legislative  and  constitu- 
tional provisions,  it  will  not  be  attempted  to  show  in  what  civil 
or  social  liberty  consists  in  each  State  or  local  jurisdiction  of  the 
United  States.  Determined  as  it  is  by  the  existence  of  a  va- 
riety of  relations,  it  could  only  be  described  under  a  compre- 
hensive view  of  all  individual  and  relative  rights  under  private 
law  and  the  guarantees  for  their  maintenance  in  the  public  law. 
Neither  is  it  intended  to  give  a  summary  view  or  description  of 
slavery,  as  contrasted  with  a  free  condition  under  the  common  law 
of  England  or  of  the  United  States,  either  as  a  condition  of  per- 
sonal bondage,  bondage  of  a  legal  person,  or  as  a  chattel  con- 
dition. The  2)urpose  in  view  will  be  to  present  the  existence  or 
non-existence,  and  the  juridical  modification,  extension,  or  re- 
striction, in  each  State  or  several  local  jurisdiction  of  the  United 
States,  of  those  two  systems  of  personal  laws,  the  origin  and 
existence  of  which,  in  those  colonies  of  the  British  empire  which 

'  Ante,  §§  97-101.  »  Ante,  §  384. 


598  CONTEMPLATED  VIEW  OF  THE  LAWS  OF  THE  STATES. 

now  constitute  a  portion  of  the  American  Union,  have  heen  con- 
sidered in  the  former  part  of  tliis  work,  so  for  as  that  may  be 
accomplished  by  describing  the  UtjisJative  action  of  the  posses- 
sors of  sovereign  power,  affecting  the  enjoyment  of  so  called  "  per- 
sonal rights,"  and  by  noting  in  connection  the  leading  judicial  de- 
cisions in  cases  arising  under  such  legislation,  or  in  which  impor- 
tant doctrines  of  common  law  affecting  those  rights  are  prominent- 
ly declared.  And  whether  as  an  effect  of  local  or  State  law,  or  as 
one  of  the  national  law  of  the  United  States,  the  subject  of  free 
condition  and  its  contraries  will,  throughout,  be  in  this  work 
regarded  exclusively  as  a  topic  of  jurisprudence,  or  in  the  purely 
legal  point  of  view,  entirely  distinct  from  all  ethical  and  political 
considerations. 


INDEX. 


The  mimerals  in  (  )  indicate  notes,  and  the  reference  is  to  the  page. 


Abhott  on  Shipping,  29  (2). 

Abolition  Documents,  515  (3). 

Aboriginal  inhabitants,  law  applied  to 
them,  199;  slavery  of  by  captivity, 
200.     See  Indians. 

Abraham's  sacrifice  of  his  son,  360  (5). 

Absolute  rights,  51. 

power  of  the  state,  12;  its  in- 
vestiture during  the  coloninl  period, 
126-128  ;  how  held  in  the  U.  S.,  414. 

Acquisition  of  territorv  by  Government  jf 
U.  S.,  410. 

Adams,  J.  Q.,  414  (2). 

,  ■\Villiara,  Law  of  Slaverj'  in  British 

India,  203  (2). 

J^thiopian  race,  217  (2). 

African  slavery,  antiquity  of,  161 ;  exten- 
sion in  15th  century,  162  :  slave  trade 
under  English  statutes,  1 74. 

•  Company,  the,  175  (2),  181  (1). 

Africans.     See  Negroes. 

Ahrens,  Xaturrecht,  19  (1),  37  (1),  40  (1). 

Aliens,  48,  60 ;  to  the  colony  and  to  the 
empire  distinguished.  318;  physical 
distinction  among,  320  ;  foreign  and 
domestic  defined,  445 ;  power  over 
their  condition  in  the  U.  S.,  450. 

Ambassador,  case  of  slave  of,  337. 

America,  laws  of  England  extended  to, 
118. 

American  Jurist,  21  (1),  31  (1),  46  (2). 

Law  Register,  194. 

Tracts,  118(1),  129  (1),  198  (1). 

Analytical  school  of  jur'sprudence,  47  (2). 

Anglican  liberty,  31  (1). 

Animals  ferse  naturae,  385  (1). 

Annual  Register,  216  (1). 

Antinomianism  in  Rh.  Island,  274. 


Apprentices,  minor,  in  the  colonies,  218 

(2),  326. 
A  priori,  a  posteriori  methods  distinguished, 

16(4),  516(1). 
Aquinas,  150  (1). 

Archiv  fiir  die  Ci\-il.  Praxis.  See  W^chter. 
Argentre,  339. 
Aristippus,  1  (1). 
Aristotle,   3  (1),  16  (3),   18  (2),  27  (1), 

154  (3). 
Assiento,  contract  acquired    by   England, 

175. 
Asso  y  Manuel,  Institutes  of  Spanish  Law, 

344  (2). 
Austin's  Province  of  Jur.   Determined,   1 

(1),  6(1),  11  (3),  12  (2),  13(2,6), 

15(1),  19  (3),  21  (1).  36  (3),  41  (2), 

52,  93  (1),  146  (1),  148  (1),  398  (1). 
Autonomic  action  in  international  law,  112. 
action  of  Congress  in  admitting 


new  States,  412  (1). 
Ayala,  204  ( 2). 
AvUffe,  Pandects,  1  (1),  16  (1). 


B 


Bacon's  Abridgment,  127  (1). 

Laws  of  Maryland,  247-254 

,  Lord,   Essays,  13   (4) ;    Advance- 


ment of  Learning,  15  (2),  18  (1),  25 
(1),  26(2),  28(2),  31  (1),  80(2),  115 
(1),  130(1),  526(3),  .586(1). 

■,  Nathaniel,  Historical  Discourse  on 


the  Uniformity  of  the  Government  of 

England,  125  (2),  136  <3),  255  (2). 
Baldwin,  Judge,  Constitutional  Views,  405 

(2),   408  (2) ;  on  property  in  slaves, 

561  (1). 
Bancroft,  in  Coll.  N.  Y.  Hist.   Soc,  229  ; 


600 


INDEX. 


Hist,  of  U.  S.,  1 19  (4,  5, 6),  120  (3,  4). 
121  (1.  2,  4),  126  (1,  4),  157  (1),  IfJl 
(1),  162  (3,  4),  174  (2),  204  (1),  205 
(1,2,  3,  4),  206  (1,  2),  208  (2),  210, 
217  (2i,  219  (5),  221  (1),  282  (1), 
254  (-2),  255  (2),  261  (1),  263  (1), 
273  (2),  275  (1),  289  (1),  293  (1), 
310(1). 

Baptism,  effect  on  sluverv  by  unwritten 
law,  165,  210,  353  :  altere<l  bv  statute, 
Va.,  232,  234,  240,  243;  Md.,  2.50 
(1),  252 ;  N.  Y.,  2S1 ;  S.  C,  297,  300. 

Barbarous  punishment  law  of  Mass.,  259. 

Barbary  states,  their  piracies,  160. 

Barbeynic,  337(1). 

Barrin'j;li)n  on  the  Statutes,  177  (1),  179, 
211  (1),  3.32  (2),  339. 

Bartktt,  J.  R.,  Records  of  R.I.  col.,  273  (3). 

Basilica,  the,  18(2). 

Belknap.  Letter  to  Tucker  on  slavery  in 
Mass,  2.->8  (1),  264  (1);  Hist,  of  N. 
Hamp.,  265  (1,  2),  267  (1). 

Benedict's  Admiralty,  29  (2). 

Beiijaiuin,   Senator,  speech   in    debate    on 
■  Kansas,  572,  582-587 

Bentbam's  Morals  and  Leijisl ,  6  (1),  9(1), 
16(4),  18  (2),  26  (1)";  32  (1)  48(2), 
146(1),  469(1);  Papers  relative  to 
codification,  25  (4) ;  Plea  for  the  Con- 
stitution, 129  (1). 

Benton's  Examination  of  the  Dred  Scott 
case,  423  1 1),  429  (3  ',  440  (2). 

Berkeley's  Works,  210(1). 

Best,  Ch.  J.,  on  Somerset's  case,  376(3). 

Bethel],  Sir  Richard,  31  (1),  144  (2). 

Bettle's  Essay  on  Slavery,  206  ( 1 ). 

Beverley's  Virginia,  205  (4),  230  (1). 

Bills  of  riglits  during  the  colonial  period, 
123  ;  that  in  the  Cons.  U.  S.  463 ;  does 
not  restrict  the  States,  476. 

Birth,  alien  or  native,  49 ;  effect  of,  com- 
pared with  that  of  domicil,  316  ;  from 
slave  mother  in  Roman  law,  151  ;  of 
status  by,  in  modern  Europe,  and  col- 
onies, 211  ;  status  by,  under  .statute 
Va.,  241;  Md.,  249,  251  (1),  252; 
N.  Y.  281;  8.  C.  299,  303. 

Blackstone's  Comm.,  1  (1),  7  ',3),  9  (1),  12, 
20(1),  27  (■!},  29  (2),  31  ^1),  ^^ 
(1,  2),  115,  120(1),  127,  1j8,  130(1), 
132(1).  136(1,  4),  137(2),  140  (2), 
196  (3),  211  (1),  218  (2),  2.39(1), 
379  1 1,  3),  380  (5),  507  (1),  588  (2), 
and  see  Tucker's  Blackstone. 

Blair,  Slavery  among  the  Romans,  156 
(4),  157(1). 

Board  of  Trade  and  Plantations,  309  (2). 

Bodin's  Republic,  12  (2i,  1.59  (1),  165  (1), 
167  (3),  214  (2),  314  (Ij,  337,  339  (1), 
341(1),  354(2). 


BoUan's  Colonioe  Anglicanse  Illustrate, 
160  (.5) 

Bondage  of  legal  persons,  39 ;  replaced 
chattel  slavery  in  Europe,  J  57  ;  of  in- 
dentured servants,  218,  325. 

Boston,  town  of,  on  negro  slavery,  263 
(1,  2). 

Boswell's  Life  of  Johnson,  333  (1) 

Bosworth's  Anglo-Sax.  Lex.,  18  (2), 

Boucaut,  or  Borcaut,  case  of,  in  France, 
33K. 

Bou\'ier's  Inst.  Am.  Law,  399  (1). 

Bower's  Popes,  160  (2). 

Bowyer's  Universal  Pub.  L.,  1  (2),  3  (1),  4 
(1),  8  (1),  11  (2),  12  (1).  15  (4),  16 
(2,  4),  23  (1),  45  (1),  47(1),  49(1), 
58  (1),  99  (1),  144  (3),  196  (3),  314 
(1),  .506(3). 

Bozius,  de  Jure  Status,  94  (1). 

Bracton,  127  (1),  144  (2),  207  (3),  419  (1). 

Bradford,  Gov.,  patent  to,  254  (2). 

,  Judge,  on  Foreign  Law,  71  (1). 

Brande's  Diet.,  1  (1),  15  (1). 

Brehon  law,  28  (1). 

Brevard's  observations,  293  (1). 

British  empire,  public  law  of,  during  co- 
lonial period,  126;  distinction  of  ju- 
risdiction in  it,  317. 

British  precedents,  their  authority  before 
re  vol.,  333. 

Broadhead's  Hist,  of  N.  Y.,  206  (1). 

Brompton,  131  (2). 

Brougham's  Political  Philosopln-,  18  (2); 
Colonial  Policy,  208  (2). 

Browne's  Civil  and  Admiralty  Law,  46  (1), 
144  (3). 

Brownlow,  218  (2). 

Buchanan,  President,  reference  to  Dred 
Scott's  case  b^',  559  (1). 

Bulls,  Papal,  decreeing  sl.avery,  160(2,5). 

Bunsen's  Signs  of  the  Times,  12  (1). 

Bureaucracy,  420  (4). 

Burge's  Comm.  on  Col.  and  For.  L.,  33  (1), 
71  (1),  181  (1),  209  (1),  308  (1),  333 
(1),  378  (1). 

Burke,  speeches  of,  225  (4),  461  (1) ;  Ac- 
count of  the  Brit.  SettL  in  Am.,  381 
(2). 

Burning,  death  of  slave  by,  in  Mass.,  259 

all- 
Butir,  Uorce  JuridicK,  18  (2),  28(2),  29 
A:i),  31(1),  94(1),  144(1). 

B.F.  Discourse  on  the  Const.  Hist. 


of  N.  Y.,  221  (1). 
Bynkershoek   Qu«st.   Jur.   Pub.,  161  (3), 

204   (2);   De   Foro   Legatorum,    337 

(1);  Essay -on   the   Patria   Potestas, 

360(5). 
Byzantine  Jurists,  18  (2). 


INDEX. 


601 


Caesar,  de  Bello  Gnl.,  158  (1). 

California.     See  Compromise  measures. 

Calhoun's  Works,  7(1),  313  |1),  400(2), 
405  (2\  407(1.  3,  4),  408(2),  413 
(2),  421  (1),  423  (1),  424  (1,  2),  482 
(1),  488(1),  555(1). 

Campanius,  206(1),  210(2). 

Campbell,  Lord,  Lives  of  the  Chief  Jus- 
tices, 374  (1),  376(3). 

Campbell,  Mr.  Justice,  in  Dred  Scott's 
case,  citinsr  Bodin,  338(2);  on  Vcr- 
delin's  slaves,  340  (1),  342(1),  343 
(1);  statement  of  rule  of  internat.  law, 
373  (1);  on  Missouri  Compromise, 
534-538,  557,  566,  (2),  573  (1). 

Canadian  Freeholder,  124  (3). 

Canciani,  Leges  Barbarorum,  23  (1),  158 

(2). 

Canon  Law,  force  of,  29  ( 1 ),  95  ;  the  De- 
cretals cited,  157(1),  160(1). 

Capacity  for  rights,  an  element  of  status, 
134. 

Capitulation  of  the  Dutch  at  N.  Y.,  Articles 
of,  278(1). 

Captivity  in  war,  cause  of  slavery,  150;  of 
American  Indians,  200.     See  Indians. 

Caput,  a  synonym  of  status,  40  (2,  3). 

Cameades,  2  (2). 

Cases  reported.     See  the  Table  of. 

Caste,  defined,  44. 

Catron,  Mr.  Justice,  in  Dred  Scott's  case ; 
on  property  in  oneself,  516  (1);  Mis- 
souri Comp.,  539-541,  543  (1),  557, 
559  (1). 

Caucasian,  the  term,  217. 

Causes  C  lebres,  slave  cases  in,  337  (1), 
338,  339  (1),  342,  344. 

Cession  of  teiritory  by  the  States,  410. 

Chalmers,  Pol.  Annals,  120  (1),  121  (1), 
197(2),  219(1),  388(3). 

Hist,  of  Rev.,  118  (1). 

Opinion.*,  117  (2),  122  (2),  126 

(2),  129(2,  3),  218(1),  242(1). 

Charlemagne,  slavery  in  his  time,  159  (1) ; 
law  of,  for  rendition  of  slaves,  340(1). 

Charters,  colonial,  their  personal  guaran- 
tees, 119;  construed  by  personal  dis- 
tinctions embraced  in  universal 
rispnidence,  207  ;  of  English  libe: 
135  ( 1 ) ;  of  Virginia,  228  ( 1 ),  234  (i ) ; 
of  Lord  Baltimore,  247  (I)?^I»9S. 
254  (2),  256  (3);  Commission  to  Cutts, 
265  (1);  Conn.  270  (1),  273"  (2); 
Providence  PI.  273(3),  and  Rh.  L 
275  (1);  of  Duke  of  York,  278  (2); 
of  W.  Penn,  286  ( 1) ;  Carolina  Proprie- 
tors, 293  (1) ;  Trustees  of  Ga.  309  (2). 

Chattel  slavery  defined,  40 ;  its  prevalence 


in  antiquity,  154  ;  why  cognizable  by 
universal  jurisprudence,  104  ;  when 
not  cognizable  by  reason  of  a  uni- 
versal attribution  of  rights,  106  ;  how 
modified  on  introduction  of  Chris- 
tianity, 156;  became  lawful  in  the 
colonies,  206;  may  have  changed  in 
some  of  the  colonies  into  a  different 
bond  status,  210,  368. 
Chase,  Judge,  on  distribution  of  sover- 
eignty, 469  (2),  on  limitation  of  leg- 
islature, 519  (5). 
Chicasjo  Press,  case  on  negro  citizenship, 

437(1). 
Chipman  on  Government,  130  (2). 
Chitty,  Commercial  law,  119(1),  120(1). 

on  Prerogative,  118  (1),  119  (1), 

120(1),  126(2). 
Choate,  address  before  N.  Y.  New  England 

Soc,  125  (2). 
Christianity,  its  effect  on  slaveiy  during 
the  Roman  empire,  155  ;  in  sustaining 
slavery  of  heathen  barbarians,  159 ; 
how  far  a  part  of  common  law,  172  ; 
recognition  in  some  colonial  codes, 
198  ;  negro  slavery  said  to  be  an  in- 
stitution of,  165  (1). 
Christian's  notes  to  Blackstone,  1  (1),  29 

(2),  128,  1.30(2),  588(2). 
ChristinKus,  335,  384  (2). 
Church,   the,   not  authority   in  law,  12 ; 
doctrines  of,  respecting  slavery,  157; 
enslaving  by  the  Roman,  160,  (2,  5), 

membership,    qualification    for 

voting,  121. 
Cicero,  5  (2),  24  (1),  29  (2),  87  (2),  154 

(3),  426  (2). 
Citizen  defined  by  Ch.  J.  Taney,  412  (2) ; 
negroes  held  not,  in  Dred  Scott's  case, 
434;  contra  by  McLean,  435,  and 
Curtis,  436  (2);  different  meanings  of 
the  term  in  the  Constitution,  435. 
Civil  law,  use  of  the  word,  7  (3) ;  in  Dutch 

colonies,  221  (1),  277(2). 
Civil  liberty,  its  guarantees  in  English  law, 
134 ;  connection  with  political  liberty, 
419. 
Claim  in  pais,  for  delivery  of  slave,  330  n. 
Clay,    on  extension  of  the  Constitution, 
423 ;  on  State  law  in  U.  S.  courts, 
490  (2). 
Cobb,  Jo-seph  B.,  Leisure  Labors,  516  (1). 
Code,  civil,  Projet  du,  15  (1). 
Code  noir  of  Louis  XFV^.,  343. 
Coke's  Institutes,  4  (3,  4),  13  (3),  27  (2), 
28(1),  32(1),  127,  128(1),  131(1), 
135(1),  136(1),  137(1),  141(1),  174, 
(1),  211  (1),  218(2),  507(1). 
Colebrooke,   Paper   on   Slavery  in  India, 
203  (2). 


602 


INDEX. 


Coleridfie,  S.  T.,  513  (5),  r,24  (2). 

CoUanier,  Senator,  on  property  in  slaves, 
581(1). 

Collision  of  laws,  use  of  term,  97  (.3). 

Colonial  (Jovennnents,  views  of  their 
powers,  120,  120;  how  ahrogateil  by 
the  revolution,  400;  law  for  slaverj', 
20'.),  225. 

Colonies,  origin  of  law  in,  228;  negro 
slavery,  when  introduced,  205  ;  law  of 
those  not  first  settled  by  English, 
221 ;  private  law  of,  continued  after 
the  Revolution,  407. 

Colonists,  their  doctrine  of  the  public  law 
of  the  empire,  120-12(5 ;  personal  laws 
determining  their  condition,  196. 

Colored  races,  basis  of  their  status  in  the 
colonies,  215. 

Condition  of  things,  2  ;  personal,  defined, 
39 ;  two  distinct  laws  of,  in  the  colo- 
nies, 216,  226. 

Congress,  its  recommendation  to  colonial 
conventions,  267  (1),  402  (2);  pro- 
ceedings relative  to  St.  John  Parish 
and  the  Mecklenburgh  decl.,  406 
(1);  of  the  Revolution  had  no  power 
over  status,  469  ;  question  of  its  power 
over  slavery  in  the  Territories,  525  ; 
autonomic  power  in  admission  of 
States,  412,  (1). 

Correspondence  between  Gov.  of  Xew  Neth. 
and  N.  E.  Commissioners,  268  (5). 

Confederacy  of  New  England  colonies,  268 
(5),  329. 

Confederation,  state  sovereignty  in,  407 
( 1 ) ;  article  affecting  status  in,  522. 

Conflict  of  laws,  62,  97. 

Connecticut,  sovereignty  in  the  freemen 
of,  126(4);  origin  of  Gov.  267(2); 
slavery  in,  212  (2),  359  (4);  statute 
law  of  colony,  267-273. 

Conquered  countries,  their  laws  continue, 
114. 

Conspiracy  of  slaves.  See  Slaves,  insur- 
rection. 

Constitutio  juris  gentium,  meaning  of,  152. 

Constitutions,  force  of  written,  396 ;  if 
changeable  except  in  accordance  with 
their  own  terms,  413  ;  authority  is  of 
the  nature  of  customary  law,  27,  (2) ; 
containing  legislative  changes  of  ex- 
isting law,  526,  (2);  of  the  several 
States  as  restrictive  of  legislature, 
520. 

Constitution  of  the  United  States,  by  what 
people  established,  400 ;  e^•idence  of 
the  location  of  sovereign  power,  422  ; 
contains  private  law  also,  423,  452 ; 
,  whether  it  speaks  of  slaves  as  prop- 
erty or  as  persons,  560. 


Constant,  M.  Benj.,  35  (3),  420  (3),  461  (1). 

Contrary  and  opposite,  the  terms  distin- 
guished, .524  1 2), 

Conversion  to  Christianity.     See  Bapti.sra. 

Convention,  revolutionary,  at  Exeter,  X.  H. 
267(1). 

Convicts,  statute  against  importation  of, 
Va.,232  ;  Md.,  250  ;  Conn ,  272  ;  Pa., 
290. 

Coode  on  Legislative  Expression,  20  (3). 

Cooper's  version  of  Inst.,  214  (1). 

Cornbury,  Governor,  of  N.  Y.  and  N.  J., 
283,  280;  his  instructions,  280  (1). 

Corpus  Juris  CiWlis.     Sev  Roman  Law. 

Comity,  reason  of  the  judicial  rule  so  called, 
69;  error  prevalent  on  this  topic.  73, 
76,  352  ;  substit\ite  for  the  ordinary 
rule,  81  ;  application  of  the  rule  to 
slave  cases  during  the  colonial  period, 
366 ;  question  of,  in  Dred  Scotl's  case, 
490  (2) 

Commerce,  law  of,  maritime,  embracing 
universal  jurisprudence,  89  (1);  sla- 
very under  it,  1 74. 

Commissioners  of  the  united  N.  E.  Col., 
268  (5). 

of  the  U.  S.  Courts,  their 


office  ministerial,  508  ;  judicial  au- 
thority on  their  action  under  the  fn- 
gitive  slave  law,  501  (2),  50.H  ( 1 1. 

Common  law,  what  is,  .31  ;  Jeff'rson's 
view,  119(1);  its  personal  extent  in 
America,  124-129  ;  its  extent  in  the 
British  empire,  131  ;  its  efifect  as  a 
law  of  condition,  132  ;  its  local  devel- 
opment in  each  colony,  209 ;  none 
having  a  national  territorial  extent 
in  the  U.  S.,  478-482  ;  may  operate 
as  a  personal  law,  480 ;  when  sus- 
taining and  when  not  sustaining  sla- 
very in  the  colonies,  324,  390. 

Compact,  the  theory  of  the  social,  not  il- 
lustrated in  the  U.  S.,  400  (2),  513 
(5) ;  of  voluntary  compacts  in  tlie  first 
settlement  of  the  colonies,  120,  254, 
265(1),  267. 

Compromise,  the  unconstitutionality  of  the 
Missouri,  528  (1);  the  compromise 
measures  of  1850,  563  (1). 

Comstock.  Judge,  on  power  of  legislature, 
2  529  (5) ;  on  the  foundation  of  prop- 
•    erty,  565  (1). 

Cqmte,  Traiti'-  de  Legislation,  7  (2;;  de 
la  Propriete,  469  (2). 

Cor\'inus,  Jus  < 'anonicum,  94  (1). 

Courts  of  ordinary  juri-diction  in  the 
States,  their  concurrent  judicial 
power,  501. 

Covarruvias,  204  (2), 

Cousin,  7  (1). 


INDEX. 


603 


Cowell's  Inst.,  207  (3). 

Crawford,  Jud^jc,  on  judiciiil  power  under 
fug  sliive  l:i\v,  .")()2  (2). 

Criminals,  surrender  of  in  Conn.,  272  ;  in 
N.  E.  Articles  of  Confed,  268  (5). 
(See  Convicts. 

Cruiksliank,  Slavery  on  the  Gold  Coast, 
203(2). 

Curtis,  G.  T.,  Commentaries  on  the  Jurisd. 
&c.,  of  the  U.  S.  Courts,  429  (3),  4!)2 
(I),  4rit3  (1,  3),  4<JG  (1,  2),  498  (2), 
567  (1),  590  (3) ;  History  of  the  Con- 
stitution, 120  (1),  126  (2),  314  (2), 
400  (2),  401  (1),  406  (1,  2,  5),  408 
(2),  518  (2). 

,  Mr.  Justice,  in  Dred  Scott's  case, 

334  (3 ) ;  slavery  a  variable  status. 
358  (5) ;  meaning  of  citizen,  436  (2) ; 
criterion  of  State  law,  490  (2);  on 
the  ]Missouri  Compromise,  546-554. 

Gushing,  L.  S.,  on  Study  of  Roman  Law, 
15  (1),  25  (3),  29  (1).  Law  of  legisla- 
tive Assemblies,  486(1),  509  (1). 

Custom,  effect  and  not  cause  of  law,  26. 

Customary  law,  included  in  positive  law, 
30,  577;  origin  of  an  international, 
84  ;  foundation  of  negro  slavery,  206  ; 
international  in  case  of  slaves  during 
the  colonial  period,  334  ;  '  an  inter- 
national, recognized  in  slave  cases, 
353 ;  none  for  slavery  in  England, 
380. 


D'Aguesseau,  4  (1),  9  (1),  10  (1),  12  (1), 
14(2),  18(1),  24(1),  31(1). 

Dane's  Abridgment,  408  (2). 

Daniel,  Mr.  Justice,  on  the  Roman  law 
of  Libertini,  214  (1,  2) ;  on  the  status 
of  Africans  by  the  law  of  nations,  321 
(1);  on  slavery  in  the  Territories, 
531-534. 

Danish  settlements,  law  in,  219  (2),  221 
(1),  291  (1),  344  (2). 

Debtors  required  to  satisfy  by  personal  ser- 
vice, statute  Coim.,  271 ;  Pa.,  288. 

Decisions,  judicial,  their  force,  25,  526  (2) ; 
in  mternational  law,  33,  330  ;  of  the 
colonial  courts,  209. 

Declaration  of  Rights  of  continental  Cong., 
126  (2) ;  of  Vij-ginia,  246. 

Declaration  of  Independence,  its  effect  on 
personal  condition,  467-471 ;  the 
Mecklenburg,  296.  402  (1),  406  (1). 

Decretals.     See  Canon  Law. 

Dcferriere,  28  (2). 

Detijiitions,  maxim  in  Digest,  3  (2) ;  who 
should  make  them  in  science,  469  (2). 


Delaware,  slaveiy  in  the  settlements  on 
the,  206 ;  statutes  of  the  Col.,  291- 
293. 

Delivery  of  fugitives  on  claim,  330. 

De  Maistre,  16  (4),  396  (2). 

Demosthenes,  5  (2). 

Denisart,  Decisions  Nouvelles,  343  (1), 
344  (2). 

De  Tocqueville,  16  (2),  404  (2),  408  (2). 

De  Tracy,  comment.  Montesq.l  ( 1),  417(2). 

Descent  of  personal  laws,  196,  466  ;  sla- 
very by.     See  Birth. 

Despotic  power.     See  Absolute  power. 

Dew  on  Slavery,  516  (1). 

Digest.     See  Roman  Law. 

Diogenes,  Laertius,  2  (2). 

Dionysius  Halicai'iiassensis,  144  (1). 

Distributed  sovereigutj-.  See  Sovereignty. 

District  of  Columbia,  453,  563  (1). 

Doctor  and  Student,  3  (2),  13  (3),  15  (1), 
29  (2),  36  (2). 

Domat,  1  (2),  4  (1),  7  (1),  16  (4),  144  (3), 
315  (1). 

Domicil,  personal  extent  of  laws  deter- 
mined by,  49,  112  ;  law  of  determin- 
ing status,  and  the  exception,  109  (1)  ; 
its  importance  in  the  Lnternational  law 
of  the  colonies,  316 ;  case  of  slave's 
return  to,  384. 

Douglas,  Summary,  274  (1). 

Dred  Scott's  case,  opinion  of  the  court, 
who  are  citizens,  ^i.2  (2) ;  negroes  not 
citizens,  434  ;  constitution  operating 
as  bill  of  rights,  440  (2),  463  (1 ),  529  ; 
effect  of  Declaration  of  Independence, 
471  (2) ;  criterion  of  State  law,  490 
(2) ;  constitutionality  of  the  Missouri 
Comp.,  528 ;  opinions  of  Justices 
Wayne  and  Grier,  531 ;  of  Justices 
Daniel  and  Campbell,  531-538 ;  Mr. 
Justice  Catron,  539 ;  Mr.  Justice 
McLean,  541  ;  Mr.  Justice  Curtis, 
546;  summary  of  the  opinions,  557; 
argument  against  the  decision,  560- 
570. 

Droit,  use  of  term,  146  (1). 

Dromond's  slave,  Ya.,  231. 

Duck's  Treatise,  145  (1). 

Duer  on  Insurance,  29  (2). 

Duke's  Laws,  the,  278. 

Dummer's  Defence  of  the  N.  E.  Charters, 
118(1),  129  (1). 

Dunning,  in  Somerset's  case,  376  (4),  377. 

Dumont's  Corps  Diplomatique,  175  (1). 

Duponceau  on  Jurisdiction,  16  (2),  18  (1), 
31  (1),  47  (3),  140  (3),  145  (1),  481 
(1,  3),  482(3),  498  (1). 

Dutch  settlements,  negro  slavery  in,  206  ; 
civil  law  in,  277  (2). 

Dwarris  on  Statutes,  127  (1). 


604 


INDEX. 


E 


Edrisius,  1G2  (3). 

Edward  the  Confessor,  common  law  in  his 
time,  131  (2),  172(1). 

Elective  franchise,  227;  colonial  statute 
law  respecting,  Va.,  232,  238,  242, 
24G;  Md.,  2-A  ;  Mass.,  255,  256,  201, 
262;  Conn.,  268,  271;  Rh.  I.,  273 
(3);  N.  J.,  286;  S.  Car.,  298,  :}01. 

Ellenborough,  Lord,  on  recognition  of  fo- 
reign law,  G8{2);  on  personal  laws 
in  India,  2JG(1). 

EUiot's  Hist,  of  N.  E  ,  219  (5),  259^  (1), 
277(1). 

Elliott's  Debates,  408  (2). 

Emancipation.     See  Manumission  ;  Slaves. 

Encyclopedia  Am.  vol.  vii.     See  Story. 

England,  local  customs  in,  99  (1 ),  1 1 G  (2) ; 
law  of,  its  extent  in  conquered  coun- 
tries, 117;  negro  slavery  in,  during 
colonial  period,  170-188;  slaves  being 
there,  stat.  of  Va.  respecting,  239, 
243. 

England,  Bishop,  Letters  on  Slavery,  150 
(1),  157(1),  IGO(l),  167(3). 

Equality  of  men,  effect  of  its  assertion  in 
the  Declaration  of  Independence,  468. 

Equity,  disting\iished  from  law  only  as  a 
method  of  remedy,  31,  n. 

Euripides,  Hec,  459  (2). 

European  race,  extent  of  laws  to,  the,  217, 
320,  324. 

Evidence.     See  Testimony. 

Existence  and  realization  of  relations  dis- 
tinguished, 59. 

Extent  of  law,  80 ;  criterion  of  it,  96 ;  of 
English  law  of  personal  condition  in 
the  empire,  140,  196;  not  changed 
by  the  Constitution,  465. 

Extradition  by  the  executive,  not  demand- 
able  in  case  of  slaves  durmg  the  colo- 
nial period,  387. 


Falck,  Juristiche  Encyclopadie,  5  (1),  15 
(3),  26  (2),  28  (2),  40  (2),  509  (1), 
510  (1,  2),  526  (3). 

Faucher,  22  (I),  46  (2). 

Federalist,  No  39,  by  Madison,  405  (2), 
406  (5);  No.  82,  by  Hamilton,  492 
(2),  493  (2),  496  (2),  498  (2). 

Feudal  slavery,  nature  of,  44 ;  replaced 
chattel  slavery  in  Europe,  157. 

institutions,  an  illustration  of  dis- 
tributed  sovereignty,   314    (1),    408 


FenE  naturup,  animal.«,  distingmshed  from 
slaves,  385  ( 1 ). 

Ferguson,  Report  on  Divorce,  383  (2). 

Fichte,  35  ( 1 ). 

Final  arbiter  of  power  under  the  Constitu- 
tion, 430. 

Finch,  Sir  Henry,  27  (2),  29  (1),  32  (1). 

Fitzherbert,  179  (2). 

Fleta,  127  (I),  207(3). 

Fletcher,  Studies  on  Slaverv,  157  (1),  158 
(2 1,  160(2). 

Fcelix,  Droit  International  Prive,  9(1),  15 
(1),  29  (2),  65  (1 ),  75,  78  (1),  86  (1), 
99(1),  100(2),  109  (I). 

Foreign  commerce,  negro  slaves  in,  during 
the  colonial  period,  323 ;  power  of 
imperial  Government  over,  126. 

law,  its  authority,  2!^,  33,  68,  82 ; 


measure  of  the  allowance  of  its  effect, 
79,  82. 

precedents,  their  force  in  inter- 
national law,  84,  334. 

Fortescue  de  Laudibus,  13  (5),  211  (1). 

Forum  of  jurisdiction  or  of  domicil,  83. 

Foster's  Lecture,  7  ( 1 ). 

France,  serfdom  in,  158,  159,  339  (1),  cus- 
tomary law  of  in  case  of  slaves,  337- 
344. 

Franchise     See  Elective. 

Francisque.  case  of  negro  in  France,  344. 

Free  condition,  on  what  power  resting  in 
the  colonies,  215. 

Freemen,  who,  in  the  sense  of  electors,  in 
the  N.  E.  colonies,  121 ;  in  Mass.,2G2  ; 
their  action  in  the  Revolution,  401. 

Free  negroes.     See  Negroes. 

Free  persons,  sale  of  such  as  slaves,  statute 
against,  Va.,  239,  243, 244 ;  Md.  251 ; 
Del.  293. 

reduced  to  servitude  by  statute, 


249,  251  (1),  252,  253. 
Freedom,  bow  it  may  be  described,  394 ; 
howit  ma\v  exist,  419,  394;  civil,  so- 
cial, and  political  distinguished,  130, 
415  ;  how  distinguishable  under  the 
laws  of  the  U.   S.,   459 ;   how,  in  a 
sense,  impossible,  459  (2). 
Fueros,  the  Spanish,  160  (1). 
I  Fugitive.     See  Slaves,  servants. 

I slave    law.      See    Compromise 

I  measures.    Commissioners,  U.  S. 

I  Functions  of  sovereignty,  their  separation, 
I  314  (2) ;  how  held  by   the    national 

I  Government,  424  ;  theory  of  their  ex- 

ercise in  the  Territories,  589-592. 
Fundamentals,  the,  general,  of  Plymouth 
Col.,  254;  of  Massachusetts  Bay  Col., 
258. 


INDEX. 


605 


Gains,  89  (1). 

Gentilis,  Albericus,  337  (1). 

Georfiia,  slavery  when  introdnced,  206- 
212  (2);  statute  law  of  the  colony, 
309-311. 

German  eniinre,  an  international  law  of, 
100(1). 

Germany,  slavery  in  ancient,  158  (1) ; 
slavery  not  recognized  in  modern,  161 
(2);  bnt  law  of  some  districts  as  to 
liberty  of  strangers,  340. 

Gerrv,  Elbridge,  Hfe  of,  401  (1),  408  (2). 

Gibbon,  160(1). 

Glanvill,  131  (2). 

Godwin's  Commonwealth,  219  (4). 

Goethe's  Faust,  466  ( 1 ). 

Gordon's  Hist.  Am.,  26C  (1). 

Government,  forms  of,  distinguished,  417 ; 
of  a  constituted,  421. 

Governments,  the  colonial,  their  origin, 
117-125;  held  the  local  sovereignty, 
128 ;  were  divested  of  it  by  the  Rev- 
olution, 399 ;  not  all  changed  simul- 
taneously, 403. 

— ■ ,  the  national  and  the  State,  do 

not  possess  sovereign  power,  424, 
613-520;  powers  of  the  national, 
425-427 ;  those  of  the  States  are  not  | 
restricted  by  the  Conct.  of  U.  S.  as  a 
bill  of  rights,  476,  477;  power  of  the 
State  G.  over  slavery,  517;  of  the 
national  G.  in  the  Territorv,  589-59. 

Graham,  Hist,  of  U.  S.,  219  (5),  122  (2), 
401  (1). 

Granger,  speech  in  Ho.  of  Rep.  515  (3). 

Graj',  F.  C,  on  Mass.  Fundamentals,  258 

(2). 

Gra\nna,  16  (4),  147  (3). 

Greenleaf 's  E^-id.,  74  (1),  88  (1). 

Grier,  Mr.  Justice,  observations  on  Som- 
erset's case,  194  ;  on  habeas  corpus 
by  State  judiciary,  495  (7) ;  opinion 
in  Dred  Scott's  case,  531. 

Grimke,  on  a  distributed  sovereignty,  408 

Grcenewegen,  law  of  the  Netherlands  m 
slave  cases,  335. 

Grotius,  2  (2),  3(1),  7  (3),  9  (2),  14  (1), 
16(4),  24(1),  28(2),  29(1),  33(1), 
156(3),  158(4),  346,417(2). 

Guadentius,  de  Justinianaei  Sac.  Mor., 
156  (4). 

Guarantees  distinguished  from  liberty,  420 
(3);  the,  of  liberty  in  English  law, 
131 ;  in  the  constitution  of  a  repub- 
lican government,  515  ;  guarantee  of 
private  property  in  Cons,  of  U.  S.,  as 
protecting  slavery,  529. 


Gudelin,  de  Jure  Novissimo,  157  (1),  158 
(4),  IGO  (1),  167  (3),  384,  385  (1). 


H 


Hakluvt,  164(1),  177(1). 

Hale,  Ch.  J.,  20  (1),  128,  145  (1).^ 

Hallam's  Mid.  Ages,  159  (1);  Literature 

of  Europe,  204(2). 
Hall,  J.  P.,  address  before  N.  1].  Society, 

122  (2). 
Ham,  issue  of,  165(1). 
Hamilton.    See  Hedaya. 

Alexander.     See  Federalist. 

Hammond,  Senator,  speech  on  slave  ques- 
tion, 524  (2);  writings,  516  (1). 
Hardwicke,  Lord,  185. 
Ilargrave's  argument  in  Somerset's   case, 

376(2),  378(1). 
Harper,  Chancellor,  43  (2);  516  (1). 
Harrington's  Analysis,  203  (2). 
Harrison.     See  Holinshed. 
Hartford,  government  at,  267. 
Hayv.'ard.     See  Savigny. 
Hazard's  Annals  of  Pa.,  206  (1);  Collec- 
tions, 254  (2),  256  (3),  268  (5),  275 
(2),  278  (3). 
Heatliens,  slavery  of,  160. 
Hebrew  law  in  Conn.,  268  (2). 
Hedaya,  Mussulman  Law  of  slavery  in  the, 

23(1),  167(1,2). 
Heffter,  21  (2),  22  (1),  28  (3),  33  (1),  34 

(1),  35  (I),  93  (3),  156  (1). 
Hegel,  6(2),  35(1),  47(2). 
Heineccius,   88(1),  94  (1),  144  (1),  147 
(1),  151  (3),  152  (1),  154  (1),  158  (2), 
211(1). 
Hening,  statutes  of  Va.,  119  (5),  and  see 

Va.  statutes. 
Herrera,  167  (3). 
Hertius,  97  (2),  99  (3). 
Hewit,  Hist,  of  S.  C,  205  (1). 
HUdreth,  Desp.  in  Am.,  185  (2),  576  (1); 
Hist,  of  U.S.,  121(3),  122(2),  123(1), 
124  (1),  160  (4),  173  (1),  175  (2),  204 
(1),  205   (1),  206  (1),  212   (2),  219 
(3,  5),  220  (4),  226  (2),  233  (1),  249 
(1),  254  (2),  261  (I,  2),  262  (2),  268 
(4),  271(1),  275(1),  279(1),  287(1, 
2),  301  (1),  309  (2),  376  (3),  402  (2), 
403  (1). 
Hindoo  law,  115  (1). 
Historical  element  in  law,  47. 

law  of  nations.     See  Universal 

jnris[)rudence,  J 
school    of,  jurisprudence,    47 

(2). 
Hobart,  Chief  .Justice,  on  power  of  par- 
liament, 127. 


606 


INDEX. 


Hobbes,  2  (3).  5  (2),  6  (2),  22  (3),  27  ( 1 ). 

127. 
Hoffman's  Lecrjil  Outlines,  29  (2),  33  (1 ). 
Holinslied's  Chronicles,  179  (1). 
Holm.     See  Campaiiius. 
Holmes'  Annals,  121  (4),  262  (2). 
Holroyd,  Judge,  216  (1),  576  (1),  r)78. 
Holt,  Ch.  J.,  127,   145  (1),   181  (1),  224 

Horse  Juridicae,  29  (1),  31  (1),  94  (1),  144 

Horses,  how  known  to  be  property,  585. 

Horsmanden,  282  ( 1 ). 

Huberus,  l)e  Coiiflictu  Legum,  70,  71-74, 

147  (3);  De  Jure  Civit.,  149  (1),  156 

(3);  Pr£clectiones,  340(1). 
Hughes,  Gr.  Abridg.,   138  (1). 
Hugo,  Encyclopiidie,  14  (1),  20  (2). 
Hutchinson,  Collections,  219,  (4);  Hist,  of 

Mass.,120(l),  121(1,  4,5),  122(1,2), 

123  (1),  205  (5),  262  (2). 
Hume,  Hist.,  219  (1). 
Hiine,   Darstellnng    iiber    Sclavenhandel, 

151  (3),  158  (1),  159  (1),  160  (3),  161 

(1),  162  (1,  2,  3,  4),  163  (1),  164  (1), 

174  (2),  176  (1). 


lavolemus,  in  Dig.,  3  (2). 

Idol  of  the  market,  illustrated,  586  (1). 

Illicit  intercourse  of  blacks  and  whites, 
statute  law,  Va.,  229,  233,  240  ;  ]\Id., 
251  (1),  252,  253;  Mass.,  263;  Pa., 
290  ;  Del.,  292  ;  S.  C,  302. 

Immoral  laws,  111  (1). 

Imperial  power  of  crown  and  parliament, 
126,  208. 

Importation.     See  Slaves. 

Indentured  servants,  219.     See  Servants. 

India,  slavery  in  British  dominions,  203 
(2);  extent  of  English  law  in,  216  (1). 

Indians,  slavery  of,  164;  in  Mass.,  256; 
Conn.,  268;  basis  of  their  condition 
in  the  colonies,  204,  215;  how  re- 
garded as  aliens,  321 ;  when  property 
by  colonial  law,  323. 

,  statute    law   respecting;  trading 

with,  Va.,  229,  234,  236,  241  ;  inter- 
course with  N.  C,  293  (1),  295;  not 
to  have  Christian  slaves,  Va.,  233  ; 
enslavement  of,  sanctioned,  Va.,  230, 
233,  235,  241;  Mass.,  256;  Conn., 
26s ;  R.  I.,  275 ;  order  of  Commis- 
sioners of  United  N.  E.  Col.,  268  (5) ; 
instruction  of  Conn.,  272;  Is.  Y.,  280 
(1);  transportation  of,  ordered,  Va., 
237,  241.  246;  Mass.,  261;  Conn., 
269;  R.  i.,  servants,  Va.,  230,  231  ; 


slaves,  duty  on  export,  S.  C,  298; 
importation  prohibiti'd,  Mass.,  265 ; 
N.  H..  266;  Conn.,  271  ;  R.  I..  276; 
Pa.,  288 ;  their  civilization,  Mass., 
204  (1),  257;  evidence,  S.  C.  305, 
and  sec  Slaves,  Testimony. 

Individual  rights,  37 ;  may  be  attributed 
universally,  53,  83. 

Inductive  method  in  jurisprudence,  87, 
520  (2). 

Ingenuus,  meaning  of,  214  (1). 

Inhabitants  of  the  colonies  classified,  199. 

Inheritance  of  slavery,  211.     See  Birth. 

of  common  law,  196. 

Intermarriage  of  negroes  and  whites, 
statute  law,  Va.,  236,  240;  Md  ,  249, 
250,  251  (1),  253;  Mass.,  263;  Pa., 
290  ,  Del.,  292  ;  N.  C,  295. 

Internal  law,  48. 

International  law  defined,  9,  11,  34,  48  ; 
nature  of  its  authority,  10,  53 ;  when 
identified  with  national  law,  10,  53, 
97;  not  identical  with  natural  law, 
1 1 ;  is  public  and  private,  22,  97 ;  how 
J     derived,  33 ;  how  divided,  44,  54  ;  how 

V  changed,  36  ;  discriminated  from  law 
of  nations,  AQ ;  fundamental  maxims 
of  private,  55-60 ;  operates  as  a  per- 
sonal law,  64  ;  determining  personal 
condition  in  the  colonies,  200,  317, 
329,  334  ;  is  part  of  the  law  of  the 
U.  S.,  442;  how  determined  in  each 
State  of  the  Union,  490  (2) ;  how  ap- 
plied by  administrative  offict-rs,  510. 

Institutes.     See  Roman  Law. 
CoustumiJires,  339. 


Insurrections.     See  Servants,  Slaves. 

Irving,  Civil  Law,  27  (2). 

,  W.,    Knickerbocker's   History  of 

N.   Y.,  124   (1),  Hist,  of  Columbus, 

162  (4),  164  (1),  167  (3). 
Issue,  of  slave.     *SVe  Birth. 
,  that  had  in  view  in  this  volume,  572  ; 

statement  of  that  between  the  North 

and  South,  593  (2). 


Jay,  P.  A.,  in  N.  Y.  convention,  418  (1). 

Jefferson,  his  views  of  the  common  law, 
119  (1),  197  (2);  his  connection  with 
the  Declaration  of  Independence,  472 
(2) ;  his  first  draft  of,  225  (4). 

Jews  not  permitted  to  hold  slaves,  160. 

Johnson,  Judge,  on  powers  of  Congress  in 
the  Territories,  453  (3). 

Jones,  Sir  Wm.,  on  Roman  Law,  144  (2) ; 
on  Hindoo  law,  23  (1|,  115  (1);  on 
extent  of  English  law,  196  (2),  216,(1). 


INDEX. 


607 


Jones,  C.  C,  on  the  Religious  Instruction 
of  the  Negroes  in  the  U.  S.,  263  (2). 

Judicial  act,  what  is,  507. 

Judicial  decisions  a  source  of  law,  25  ;  ju- 
dicial recognition  of  foreign  law,  73 ; 

power,  of  the  U.  S.,  its  extent,  427; 

the  power  described,  432 ;  persons 
who  may  exercise  it,  487  ;  power  held 
by  legislative  bodies,  48G  (I). 

power,  concurrent  of  tlie  States,  490 ; 

they  mav  restrict  it,  498. 

Judiciary  of  the  U.  S.,  429,  504, 

Juridical,  use  of  the  term,  5  (1),  499  (3); 

Society  of  London,  5  (1),  31  (1). 

power  of  the  States  and  of  the 

U.  S.,  may  be  concurrent,  491. 

Jural,  use  of  the  term,  5  (1) ;  character  of 
the  state,  15. 

Jurisdiction  defined,  22 ;  iu  international 
law,  316  ;  in  the  Territories  of  the 
U.  S.,  453. 

Jurisdictions,  several  in  the  British  islands, 
317;  national  and  local  in  the  U.  S., 
439  ;  jurisdiction,  presumption  of,  in 
judicial  tribunal,  501  (1). 

Jurisprudence  defined,  14  ;  general  or  uni- 
versal, 15,  28,  35 ;  is  mutable,  36 ; 
a  historical  science,  47;  described  in 
the  Institutes. 

Juristical,  use  of  word,  5  (1);  phrase- 
ology, deficiency  of,  52 ;  in  the  slavery 
discussio.i,  5     . 

Jurists,  authority  of,  28. 

Jus,  two  significations  of  the  word,  19  (3), 
146. 

constitutum,  14  (1);  primEevum   et 

secundarium,  150  (1). 

in  the  Roman  law,  proprium  or  civile, 

87,  148 ;   naturale,    147 ;    gentium, 
148 ;  publicum,  149. 

Jus  gentium,  has  been  used  in  two  senses, 
72  (-2) ;  88  (2). 

slavery  supported  by  it,  154. 

Jus  proprium   supporting    slaverv  in    the 

colonies,  212,  358,  361. 
Justice,  natural,  recognition  of,  in  juris- 
prudence, 5,  24. 
Justices  of  the   peace,  powers  under  the 

fugitive  slave  law,  508  (1). 
Justinian,  law  of,  respecting  freedmen,  213, 
Justinian's  Institutes,  analysis  of  law  in, 

145.     See  Roman  law. 
Juvenal,  151  (2). 


Kaimes,  Principles  of  Equity,  89  (1). 

Kansas,  slavery  under  the  organic  law  of 
proposed  State,  559  (1) ;   act  organ 
izing  Kansas  Territory,  563  (1). 

39 


Kant,  4  (1),  13  (4),  35  (  ). 

Kaufmann.     Si-.e  Mackeldey. 

Keble's  Statutes,  179. 

Kent's  Comm.,  13  (2),  22  (1),  27  (2),  28 
(1),  33  (1),  99(1),  133  (1),  138  (2), 
140  (2),  145  (1),  161  (3),  198  (1),  204 
(2),  216(1),  404  (1),  406(3),  407(1), 
429  (3),  432  (2),  47G  (2),  481  (3), 
487  (1),  490  (2),  492  (1),  493  (I,  2), 
495  (1),  496  (2),  498  (2),  499  (1,  2), 
500  (1),  501  (Ij,  503  (1,  2),  504  (2), 
509  (2),  567  (3). 

Kidnapped  Africans,  case  of  in  Mass.,  261 
(1).     See  Manstealing. 

of  Indians  not  sanctioned  by 


law,  205. 

of  Africans,  261  (1). 

persons  in  England,  219. 

Kieft,  Gov.,  corresp.  with  N.  E.  Commis- 
sioners, 268  (5). 

Killing  slave,  law  colonial  respecting,  Geo., 
188  (3);  Va.,  232;  N.  C,  296  (1). 

King  of  England,  power  of,  in  the  colonies, 
118-125,  209,  224. 

Kirchener,  337  (1). 

Knolles.     See  Bodin. 


Lactantius,  2  (2),  5(2),  156  (3). 
Lalaure,  Servitudes  Reelles,  157  (1),  159 

(!)•   . 

Lamennaia,  16  (4). 

Lang,  Freedom,  drc.  Lands  of  Australia, 
129  (1). 

Lanjuinais,  Constitutions,  417  (2),  420  (2). 

Las  Casas,  164  (1). 

Lavie,  Abreg^  of  Bodin,  341  (1),  345.  _ 

Law,  the  term  used  in  two  senses,  1 ;  im- 
plies a  superior,  2  ;  authority  derived 
irom  the  state,  2  ;  distinguished  from 
ethics,  3,  11,  13;  its  origin,  24-32; 
its  extent,  44-52  ;  its  effect,  18,  20. 

definitions    and    divisions,    natural, 

5-13,  24 ;  positive,  14 ;  national  or 
municipal,  7,  12 ;  international,  9,  11, 
34,  48;  internal,  48;  customary,  26; 
public  and  private,  21 ;  personal,  23, 
47;  territorial,  22;  universal,  18; 
having  universal  personal  extent,  50 ; 
unwritten,  31  ;  of  nations,  17,  29,  85, 
(and  see  Universal  jurisprudence,  and 
International  law;)  natural  and  neces- 
sary law  of  nations,  45  ;  administra- 
tive, 508. 

of   the   U.  S.,   national  and  local, 

440-445 ;  divided  into  internal  and 
international,      455 ;     quasi-iuterna- 


608 


INDEX. 


tional,  452  ;  contained  in  the  Consti- 
tution of  the  U.  S,  423. 

Lawrence.  W.  B.,  Introduction  to  Whea- 
ton's  Elements,  161  (1). 

Leaminsf  and  Spicer's  Collections,  125  (1), 
278(2>,  280(1),  283. 

Lechford's  Plain  Dealing',  123  (1). 

Legislative  power,  if  limited,  of  Parliament, 
127;  of  colonial  Governments,  12I>, 
223,  225  ;  of  State  Govt-mments,  519. 

Leo  Africanus,  162  (3). 

Letters  to  Pro-Slavery  Men,  160  (5). 

Leyser,  ad  Pandectas,  62  (1). 

Lieber,  Political  Ethics,  2  (2),  3  (1),  4  (3), 
5(1),  6  (2),  7  (2),  11  (2,4),  24  (1), 
37(1),  414  (1),  417  (1,  2),  420  (4); 
Civil  Liberty  and  Self-Government, 
31  (1),  38(1,2),  135(1),  314(1),  315 
(1),  420  (4),  462  (1),  469  (1);  Legal 
and  Political  Hermeneutics,  567  (2). 

Libertimis,  Roman  law  of,  213. 

Liberty,  its  definition  a  problem,  38 ;  civil 
and  political  distinguished,  130,  415  ; 
guarantees  of,  134:  how  attributed  by 
En;.dish  law,  140  ;  an  effect  of  law, 
129  :  favored  by  law,  371 ;  connection 
of,  with  constitutions,  420. 

Liberties  of  the  subject,  statute  law  re- 
specting, English,  380  (5) ;  colonial, 
Md.,  248  ;  Mass.,  255,  258 ;  R.  L, 
274;  N.  Y.,  280  ;S.  C,  298. 

Lilburne,  179  (1). 

Lindley.     See  Thibaut. 

Locke,  on  equality  of  men,  198  (1)  ;  his 
constitution  for  Carolina,  293  (1). 

Longs,  Discourses,  15  (1),  20  (3),  90  (1). 

Long  Island,  in  State  of  N.  Y.,  settlement 
of  eastern  portion,  278. 

Louis  XIV.,  Code  Noir,  343. 

XV.,  Edict  of,  343. 

XVI.,     Edict    abolishing    serfdom, 

339  (1). 

Loysel's  Institutes,  337  (1). 


M 


Mackeldey,  Compendium,  15  (1),  20  (2), 
21  (1),  36  (3),  40  (2,  3),  47  (2),  145 
(2),  146  (1),  147  (2),  148  (1),  153(1), 
161(2). 

JIackintosh,  Progress  of  Ethical  Philos- 
ophy, 3(1),  6(1),  156(2). 

Madison.     See  Federalist. 

Papers,  208  (2). 

Magna  Charta,  128  (1),  131  (1),  135  (1), 
137(1),  141. 

Maine,  Readings  before  the  Juridical  Soc, 
52,  398  (1). 

Majority,  principle  of,  not  exemplified  in 
formation  of  the  Cons,  of  U.  S.,  405. 


Manning,  Law  of  Nations,  16  (4). 

Mansfield,  Lord,  on  positive  law,  27  (2); 
on  law  in  the  colonies  of  G.  B.,  115 
(2),  196  (2),  374;  his  decision  in  Som- 
erset's case,  183  (1),  189,  191,  373- 
382. 

Manstealing,  coloni.al  statutes  against, 
Mass.,  261 ;  N.  H.,  265  ;  Conn.,  270; 
R.  I.,  274 ;  N.  Y.,  279,  and  see  Free 
Persons,  sale  of. 

Manou,  law  of,  in  India,    115  (1),  154  (2). 

Maimmission,  in  Roman  law,  150. 

-  in  Colonial  law,  213,  214  (2). 


Maritime  Commerce,  the  law  of,  embraces 

universal  jurisprudence,  89  (1). 
Marshall  on  Insurance,  29  ( 1 ). 

-,  Life  of  Washington,  420  (1). 


Martens,  11  (3),  46  (2). 

Martyn,  Peter.  164(1). 

Maryland,  statute  law  of  the  colony,  247- 
254. 

Mason's  Patent,  265  (1). 

Massachusetts  Bay,  Company  of,  their  pa- 
tent, 256  (3),  121  ;  Colony  of,  united 
with  Plymouth  colony,  262. 

Massachusetts,  Charters  and  general  laws, 
256,  263. 

Fundamentals,  258. 

Records,   121  (5),  124  (2), 
219  (6),  261  (1),  262. 

Hist.  Soc.  Collections,  123 


(1),  205  (5),  258(2),  264. 

Provincial  Congress  Jour- 


nals, 264(1). 

-,  slavery  introduced  in,  205, 


258  ( 1 ) ;  statute  law  of  the  col.,  254- 
205  ;  international  recognition  of  sla- 
very in,  370. 

Mass^,  Droit  Commercial,  6  (2),  50  (1). 

Master  and  servant,  the  relation  of,  under 
English  law,  135-138. 

^laureubrecher,  97  (2). 

Maxims,  of  international  private  law,  55- 
58,  81. 

favoring  liberty,  381  (2),  382  (1). 


McLean,  Mr.  Justice,  in  Prigg's  case,  500 
(1),  501  (2);  in  Dred  Scott's  case, 
437,  542-545,  589 ;  his  decision  on 
negro  citizenship  in  C.  C,  437  (1). 

Mechlin,  slave  case  there,  335. 

Mecklenburg,  Declaration  of  Independence, 
296,  402(1),  406(1), 

Menander,  43  (1). 

Menu.     See  Manou. 

Mercantile  law,  mistaken  view  of  its  foun- 
dation, 29  (2). 

Merchants,  custom  of,  in  English  law,  174. 
mention  of,  in  Magna  Charta, 


141. 
Merlin,  Repertoire,  99  (1),  150  (1). 


INDEX. 


609 


Metz,  case  of  slave  at  siege  of,  338. 

Miller,  Hugh,  \5d  {!). 

Milton,  Defeiisio  pro  Populo  Angl.,172  (1). 

Ministerial  otKcers,  505. 

Mirrour,  127(1),  189(1),  211  (1). 

Missouri  Compromise,  5G3  (1),  and  see 
Dred  Scott. 

Mittermaier,  Privatreeht,  159  (1). 

Mohammedan  law  in  India,  115  (1), 

doctrine  on  enslaving  in- 
fidels, IGO;  as  to  effect  of  conversion, 
167(1), 

Mollov,  de  Jure  Marit.  i  (3),  188  (1),  379 
(3). 

Molyneux,  case  of  Ireland,  43  (2). 

Montesquieu,  Spirit  of  Laws,  1  (1),  80  (2), 
159  (1),  426  (2);  Lettres  Persanes, 
376  (3). 

Moors,  slaveiy  of,  162,  234,  341. 

Morhof,  Polvhistor.,  16  (4). 

Motlev,  Rise  of  Dutch  Republic,  204  (2). 

Moulton,  Hist,  of  N.  Y.,  206  (1),  221  (1). 

Miiblenbnicli,  Pandectarum  Doctrina,  153 

(1). 
Mulford,  Hist,  of  N.  J.,  221  (1). 
Municipal  law,  origin  of  the  term,  7  (3) ; 

Blackstone's    definition  of,    12 ;    how 

used  as  equivalent  to  national   law, 

222  (1),  513  (3). 


N 


National  Government,  use  of  term,  408. 

law,  how  distinguished,  17  ;  di- 
vided into  internal  and  international 
law,  49,  and  see  Municipal  law. 

municipal  law  of  the  U.  S.,  440. 

sovereignty,    how    exhibited    in 


the  Revolution,  403. 

states,  distinction  of,  by  De  Tracy 

and  others,  417  (2). 

Nations,  foreign,  how  a  source  of  law 
for  some  one  state,  28-35. 

of  antiquity,  all  allowed  slavery, 

154. 

,  law  of.  See  International  Law  and 

Universal  Jurisprudence. 

Native  subject  distinguished  from  alien,  49, 
64. 

subjects  in  the  colonics  distin- 
guished, 199. 

Natural  law,  its  recognition  in  jurispru- 
dence, 2,  5,  11,  13,  16,  24;  how 
identified  with  universal  jurispru- 
dence, 93,  96  ;  its  exposition  in  the 
y  Roman  Civil  and  Canon  law,  20  (1), 
86,  94  (1);  doctrine-  of,  in  the  Insti- 
tutes, 147,  148;  how  not  the  legal 
basis  of  rights  of  the  colonists,   197  ; 


nor  the  basis  of  American  Constitu- 
tions, 413. 

Natural  reason,  its  constant  recognition  in 
jurisprudence,  15 ;  how  applicable  in 
the  absence  of  local  territorial  law, 
200(1). 

rights,  how  far  recognized  in  the 

national  law  of  the  U.  S.,  460. 

and  necessary  law  of  nations,  45. 


Naturalization,    colonial  law  of,  218  (1) 
statute,  in  Va.,  233,  234,  239  ;  Md., 
248  ;  N.  Y.  279,  282  ;  S.  C,  298. 

powers  of  the  States  in  re- 


spect to,  450. 
Nature,  law  of,  1-7. 
Navarete,  162  (1). 

Nebraska  Territory,  Act  to  organize,563(l). 
Negro  plot  in  New  York,  282  (1). 

slavery,     ^ee  Slaves,  Slavery. 

Negroes,  held  in  slavery  in  England,  176.    ^^ 

/ 


basis  of  their   legal  condition  in , 


the  colonies,  215,  321,  390. 

when  property  by  the  law  of  com 


-j^ 


merce,  323,  349. 

free,  their  character  described  in 

colonial  statutes,  Va.,  242 ;  N.  J., 
284;  Pa.,  289;  DeL,  293;  reduced 
to  servitude  by  law,  R.  I.,  276  ;  Pa., 
290;  (see  Illicit  intercourse,)  prohib- 
ited from  holding  slaves,  Va.,  233, 
240;  from  bearing  arms  in  the  militia, 
Va.,  241,  244;  or  training,  Mass.,  261; 
Conn.,  270  ;  from  keeping  arms  and 
ammunition,  Va.,  244  ;  Mass.,  257 ; 
Pa.,  288;  S.  C,  300;  from  holding 
real  estate;  N.  Y.,  281 ;  N.  J.,  284. 

Nelson,  Mr.  Justice,  on  the  fugitive  slave 
law,  495  (7),  501  (2),  608  (1);  in 
Dred  Scott's  case,  528  (2),  589. 

Netherlands,  international  law  of,  in  case 
of  slaves,  277  (2),  335. 

New  England,  slavery  introduced  into  col- 
onies of,  206. 

Great  Patent  of,  254  (2). 

United  Colonies  of,  268  (5). 

New  Hampshire,  statute  law  of  the  col., 
265-2G7. 

Hist.  Soc.  Collections,  267(1). 

New  Haven,  origin  of  government  at,  268. 

New  Jersey,  statute  law  of  the  col.,  282- 
286. 

New  Mexico,  Territory  of.  See  Compro- 
mise Measm-es. 

New  York,  considered  a  part  of  New  Eng- 
land, 124  (3). 

statute  law  of  the  col.,  277-282. 

Hist.  Soc.  Collections,  229,  278. 

Nodier,  Jean  Sbogar,  459  (2). 

Normans,  their  alteration  of  Saxon  ville- 
najje,  136. 


610 


INDEX. 


North  Carolina,  statute  law  of  the  col., 
29.3-29G. 

Northington,  Chancellor,  decision  on  sla- 
very in  Enp;land,  18G;  Stowell's  criti- 
cism on  it,  .586.  .587. 

Noy's  ]\Iaxims,  172  (1). 


Object  of  action,  1 8. 

of  right,  20. 

,  use  of  term,  compared  with  subject, 

20(2). 
Objective  meanings  of  liberty,  38  ;  of  law, 

78  ;  of  the  word  jus,  146  (1). 
O'Callagan,  Hist,  of  New  Netherlands,  221 

Office,  statute  law  providing  who  should 
hold,  Va.,  238;  Md.,  2.51. 

Origin  of  law,  24  ;  of  universal  jurispru- 
dence, 92,  93. 

Otis,  Rights  of  the  Colonics,  198  (1). 

Ownership  in  slaves,  during  the  colonial 
period,  how  far  supported  by  uni- 
versal jurisprudence,  188,  206,  362, 
364 ;  how  far  by  common  law  of 
England,  133,  225,  323,  389. 

Oxford  Chronological  Tables,  159  (1), 


Paley,  Mor.  and  Pol.  Philo.,  12  (2),  315 
(1),  400  (2). 

Palgrave,  Sir  Francis,  159  (1). 

Papal  Bulls  recognizing  slavery,  160  (5). 

Paris,  an  asylum  for  libertv,  342  (1). 

Parish  of  St.  John's,  Ga.,  406  (1). 

Parliament,  power  of,  13  (3),  127. 

Partidas,  Las  Siete,  344  (2). 

Partus  scquitur  ventrem,  211  (1). 

Parsons,  Oh.  J.,  on  slavery  in  Mass.,  263 
(3). 

Pascal,  Lettres  Provinciaies,  24  (1). 

Patents,  the  colonial,  their  force,  119. 

of  N.  E.,  25i  (2);  of  Va.,  228(1). 

Paternal  power,  its  ancient  extent,  360  (5). 

Patrol,  statute  law  of,  S.  C,  305. 

Peckius,  de  Re  Nautica,  29  (2) ;  de  Reg. 
Juris,  87  (3). 

Penn.  W.,  his  proposed  legislation  for  ne- 
groes. 287  (1)  ;  views  of  governments, 
420  (1). 

Pennsylvania,  statutes  of  col.,  286-291. 

'- Hist.  Soc.  Memoirs,  219  (2 ). 

People,  the  political,  distinguished,  399  ; 
who  so  called  in  the  Constitution,  399, 
465 ;  their  action  in  the  Revolution, 
400;  their  power  imlimited,  414. 


Persons,  natural  and  legal,  41  ;  distin- 
guished from  tilings,  19,  20,  40 ; 
slaves  when  not,  42,  153. 

Personal  condition,  39,  41. 

extent  of  laws,  48-51  ;  shown  in 

international  law,  64  ;  in  colonization, 
116;  its  exhibition  in  the  British 
empire,  116,  196,  388. 

hiw.s,  23. 

rights,  101. 

statutes,  99. 

Personality,  legal,  under  a  law  of  uni- 
versal extent,  107. 

Perthes,  Life  of,  413  (3). 

Peters'  Hist,  of  Conn.,  268  (2), 

Phillimore,  J.  G..  380  (4). 

Robert,  Commentaries  on  In- 
ternational Law,  11  (1),  22  (1),  33 
(1),  95(1),  109  (1),  313  (2),  336(2), 
342(1),  344(2),  349(2). 

Phraseology,  ambiguity  of  legal,  52 ;  il- 
lustrated in  discussion  of  the  slavery 
question,  575-587. 

Pierce's  Patent,  2.')4  (2). 

Piracy,  the  slave  trade  was  not,  during  the 
colonial  period,  393. 

Pitkin,  Hist,  of  U.  S.,  121  (1),  403  (1),  407 
(2). 

Political  liberty,  130,  414;  how  deter- 
mined in  the  U.  S.,  474. 

Plato,  recognition  of  lawfulness  of  slavery, 
154  (3). 

Piatt,  Judge,  on  concurrent  judicial  power, 
497. 

Senator,  on  judicial  decision,  526  (3). 

Plymouth  colonists,  their  compact,  120. 

colony,  charters  of,  254  (2),  laws 

of,  254-256. 

Pole,  case  of  refugee,  336. 

Portugal,  negro  slavery  in,  162. 

Positive  law  defined,  14;  the  term,  how 
used  in  the  discussion  of  slavery  ques-^ 
tions,  576. 

morality,  name  applied  to  inter- 
national law,  10  (2). 

Postliminium,  if  applicable  in  slave  re- 
turning to  doiiiicil,  384,  385. 

Pcthier,  29  (2j,  100  (2). 

Potter,  E.  R.,  Report  on  Abolition  Pet, 
275(1),  276. 

Powell,  Judge,  on  slavery  in  England,  182. 

Precedents,  judicial,  force  of,  25,  526  (3) ; 
in  international  law,  84,  334. 

British,  during  the  colonial  pe- 
riod, 333. 

Prescott,  Hist.  Ferd.  and  Isab.,  162  (4). 

Presumption,  in  favor  of  liberty,  38  (2), 
381,  382. 

statutory     against     liberty, 

S.  C,  299,  303. 


INDEX. 


611 


Price,  Dr.  Richard,  118  (2). 

Primary  meaning  of  word  law,  1. 

laws  so  called,  1  (•!). 

Primordial  ri;;lits,  37  (1),  59. 

Prince,  Chronol.  Hist,  of  N.  E.,  255  (2). 

Prisoners  of  war,  enslaved,  150;  when  not 
by  Christian  nations,  158  ;  law  re- 
specting, during  seventeenth  century, 
204  (2). 

Property,  standard  of,  in  the  colonial  law, 
133,  323;  in  the  law  of  the  U.  S., 
5G5. 

,   guarantee  of,  in  the  constitution, 

463. 

in  transitu,  doctrine  of  interna- 
tional law  respecting,  3-4(5-354. 

.slaves,  not  recognized  hy  Vattel 


and  Puffeudorf,  348  ;  how  far  not  re 
cognized  by  international  law,  during 
the  colonial  period,  357-360;  not 
protected  against  the  legislative  pow- 
er of  Congress  by  a  constitutional 
guai-antee,  561-571. 

Proprietary  Governments,  120. 

Providence  Plantations,  laws  of,  273,  275. 

,    town    of,     resolution    against 

slavery,  276  (1). 

Provincial  Governments,  120. 

Prussian  code,  pai'tial  recognition  of  slave- 
ry  in,  161  (2). 

Public  law,  21,  22;  common  law  of  Eng- 
land operating  as  such,  125  ;  that  in 
the  Constitution  of  the  U.  S.,  422. 

Puchta,  Gewohnheit's  Recht,  27  (2). 

Puffendorf,  4(3),  9(2),  16  (4),  315  (1), 
345-351. 

Putnam's  Magazine,  167  (1). 

Pyrrho,  2  (2j. 


Q 


Quakers,  reason  of  the  legislation  against 
them,  256  (1). 

ordered  to  be  sold,  261. 

Quasi-international  law,  operation  of  com- 
mon law  of  England  as  such  in  the 
British  Empire,  197  ;  such  law  under 
the  Constitution  of  the  U.  S.,  452. 

Quintus  Curtius,  151  (2). 


R 


Races,  distinction  of,  dcteiTnining  condition, 
none  among  ancients,  164  ;  Mr.  Web- 
ster's statement  of  Grecian  opin- 
ion, ib.  (2);  the  modern,  ib.,  199, 
321. 

Ram  on  Legal  Judgment,  25  (2),  26  (2), 


28  (2),  29  (1,  2),  31  (1),  32  (1),  33 
(1),  5.'-,9(2). 

Raynal's  W.  Indies,  162  (3). 

Rayneval,  Inst.,  10(1). 

Rawle  on  the  Constitution,  481  (2),  492 
(3),  496  (2). 

Realization  and  existence  of  relations,  59. 

Ileal  estate,  slaves  declared,  Va.  Stat.,  239. 

Recht,  Ger.  use  of  term,  6  (2),   146  (1); 

,  biirgerliches,  21  (2). 

Reddie,  Inquiries  in  the  Science  of  Law, 
1  (1),  2  (1),  3  (1),  4  (1),  5  (2),  6  (1), 
7(3),  11  (2),  15(1),  16  (2,3,4),  19 
(3),  20(1),  25(2,4),  29(1,  2),  31(1), 
34  (1),  36  (3),  47  (2),  50  (1),  69  (1), 
72  (2),  469  (2) ;  Inquiries  in  Interna- 
tional Law,  9  (1),  10  (3),  11  (3),  34 
(1),  46(1,3),  48(1),  99  (3,  4);  Hist. 
Law  of  Marit.  Com.,  7  (3),  10  (2), 
28(2),  33(1),  89(1). 

Redemptioners,  218.     See  Sei'vants. 

Reeves,  Hist,  of  English  Law.  144  (2); 
Law  of  Shipping,  118  (2),' 121  (2). 

Domestic  Relations,  273  (1),  359  (2). 

Register  Brevium,  185  (1). 

Relations,  the  eflfect  of  law,  19. 

how  determinable  by  more  than 

one  state,  56-58. 

Religious  freedom  in  the  N.  E.  col.,  122 
(2). 

Remarques  du  Droit  Francais,  par  M.  H, 
M.,  Advocat,  339. 

Rendition,  not  applicable  to  slave  cases,387. 

Reports,  judicial,  see  the  table  of  cases. 

Republic,  meaning  of,  418. 

Republican  Government,  guarantee  of,  in 
the  Constitution,  475. 

Responsa  Prudentum,  28  (2). 

Review,  Mass.  Quart.,  27  (2),  113  (1), 
469  (2). 

N.  Am.  Quart.,  122  (2),  192  (1). 

London  Law,  144  ( 1 ). 


—  New  Englander,  214  (1) 
North  British,  418  (2). 


h^outh.  Quart.,  401  (1),  402  (2). 

Revolution,  its  place  in  reference  to  law, 
36  (1) ;  American,  organs  of  the,  401. 

Rhode  Lsland,  statute  law  of  col.,  273-277. 

Right,  dififereut  senses  of  the  term,  146. 

Rights,  of  persons  and  of  things,  19,  20; 
and  duties,  correlative,  19  ;  individu- 
al and  relative,  37;  how  attributed 
with  different  personal  extent,  51 ; 
not  attributed  to  all  by  national  law 
of  U.  S.,  466 ;  necessary  conditions 
of  their  recognition  in  international 
law,  66;  how  guaranteed  in  the  Cons, 
of  the  U.  S„  460.     Sec  Bills  of  rights. 

Robertson's  Hist,  of  Charles  V.,  145  (1), 
157(1),  164(1);  Hist,  of  Am.,  164(1). 


612 


INDEX. 


Robertson,  Lord,  on  Somerset's  case, 
381  (1). 

Rogron,  Code  Tivil  Expliqu6,  416  (1). 

Roman  Law,  universal  jurisprudence  in, 
87,  142;  reason  of  its  judicial  recog- 
nition, 29  (1),  144,568;  is  the  foun- 
dation of  English  law,  144  (2) ;  was 
not  compatible  with  international  law 
in  modern  sense,  147. 

Citations  from  the  Corpus  Juris. 

Institutes,  Prooemium,  156  (4). 

"        Lib.  L  t.  i.  145-150,  152. 

Lt.  ii.  40(1).  93(1),  152. 

"  L  t.  iii.     43(2),  150,  151. 

153. 
L  t.  V.  150,  213  (1), 

214  (1). 
"  1. 1.  Tiii.  152,  153. 

"  L  t.  xii.  385  (1). 

"  IL  t.  i.  152,  153. 

IL  t.  V,  152  (2). 

Digest,  Lib.  L  t.  i.      45  (1),  70  (1).  87 
(2),  146(1),  152(2 
213(1 
"  L  t.  ii-  28  (2),  33  (1 

"  L  t.  iii.  382  (2 

"  I.  t.  iv.  25  (4 

"  L  t.  V.         40  (1),  211  (1 

"  I.  t.  xvii.  3  (2),  4  (4 

"  n.  t.  i.  70(1 

"       XVIIL  t.  i.  154  (1 

"  XL.  t  V,  382  (1 

"        XLin.  t.  xxix.  382  (1 

"       XLVII.  t.  X.  228  (1 

"     XLVin.  t.  xxii.  70  (2 

XLLX.  t.  XV.     151  (2),  385  (1 
386(1 
"  L.  t.  xvii.  382  (1 

Codex,  Lib.  I.  t.  x.  160  (1 

"  in.  t.  xxxviii.  154  (1 

VI.  t.  i.  386  (1 

VIL  t.  V.  and  vi.         214  (1 
VIIL  t.  liii.  381  (1 

Novelise  C,  Justiniani,  156, 157,    158  (2 
"        "    Leonis,  9,  10,  II,  157(1 

"        "       "        38,  39,  158  (2 

Romance  languages,  use  of  terms  subject 

and  object  in,  20  (2). 
Royalist  theory  of  location  of  sovereignty 

in  the  colonies,  118. 
Ruffin,  Judge,  on  limitation  of  the  legisla- 
ture, 464  (1). 
Runaway.     See  Servants,  slaves. 
Rush  worth,  179  (1). 
Ruskin,  459  (1). 
Russel,  Lord  John,  Hist,  of  English  Gov., 

416  (1). 
Rutherfurth's  Inst,  2  (2),  3  (1). 


Sachsenspiegel,  23  (1). 

Sale  of  oneself,  slavery  by,  151  ;  prohibi- 
tion of  by  Roman  emperor,  158  (2). 

of  free  persons  as  slaves.     See  Free 

persons. 

Savigny,  Heutige  Riim.  Recht,  4  (2),  15 
(1),  21  (2),  23(1),  27  (2),  28  (2),  29 
(2),  32(2),  42  (1,2),  63  (1),  78  (1), 
86(1),  93  (1,2),  97(2),  99  (1),  100 
(1),  109(1),  112(1),  144(2),  148(1), 
152(1). 

Geschichte  des  Riim.  R.  im  Mit- 

telalter,   23  (1),   47  (1),   86  (1),  144 
(2),  146(1). 

on  the  Vocation  of  our  Age  for 


Legislation,  Hayward's  Transl.,  28 
(2),  31(1),  36(2),  94(1),  192(1). 

Scaccia,  Tractatus  de  Commer.,  6  (2),  80 
(2). 

SchsefiFner,  22  (1),  58  (1),  62  (1),  74  (1), 
82  (1),  99  (4),  109  (1),  112  (1). 

Schwabenspiegel,  23  (1). 

Scotland,  cases  of  negroes  there,  332 ;  col- 
liers in  slavery  there,  ib.  (2). 

Selden,  de  J.  Nat.  et  Gen.  juxta  disciplinam 
Ilebncorum,  2  (2),  3  (1),  18  (1,  2), 
27(1). 

Serfdom,  not  ascribed  to  universal  juris- 
prudence, 159,  168;  replaced  chattel 
slavery  in  Christian  Europe,  159. 

Sergeant's  Constitutional  Law,  495  (1),  496 
(2),  500(1),  504(1). 

Servants,  meaning  of  the  term  in  colonial 
statutes,  331. 

,  indentured,  origin  of  their  condition, 

218,  219. 

importation  of,  encouraged,    statute 

N.  H.,  266;  S.  C,  298,  301;  Ga., 
309 ;  duties  on.  Pa.,  289,  290. 

insurrection  of,  in  Virginia,   232  (1). 

in  Massachusetts,  having  the  elective 

franchise,  121  (1),  255. 

statute  respecting  their  term  of  ser- 
vice, Va.,  229,  230,  239,  240 ;  Md., 
248  ;  Mass.,  257  ;  R.  L,  275  ;  Del., 
292 ;  S.  C,  297. 

marriages  of,  statute  Va.,    229,  239, 

240,  and  see  intermarriage. 

runaway,  statute  Va.,  229,  230,  231, 

232,  23(3 ;  Md.,  248,  249,  252 ;  Mass., 
257,  260;  Conn.,  271;  N.  Y.,  279; 
N.  J.,  284;  Pa.,  287;  S.  C,  298. 

treatment  of,   statute  Va.,  230,  231, 

239,  240,  243;  Md.,  248;  Mass., 
255,  257,  260 ;  N.  H.,  266,  267 ;  X. 
Y.,  279 ;  N.  J.,  284,  285  ;  Pa.,  287; 
Del.,  292  ;  S.  C,  308. 


INDEX. 


613 


Servants,  trading  with,    statute  Va.,  229  ; 
Conn.,  270. 

,  women,  having  hastards,  Del.,  292 ; 

N.  C,  29.-) ;  8.  C,  302. 
Service,    contract   for    personal,    common 

law  respecting  it,  139. 
Servitude,  penal,  219  ;  abolished   by  stat- 
ute, Va.,    229,    230 ;  ordered,   Mass., 
257,  261 ;  Conn.,  272.     See  illicit  in- 
tercourse ;  Negroes. 
Seward,  Senator,  on  lawfulness  of  slavery, 
193,    207    (2),     516    (1);    on    Dred 
Scott's  case,  .572  (1). 
Sewell's  Hist,  of  Quakers,  261  (3). 
Sharpe,  Granville,  185  (1),  188,  207  (3). 
Shaw,  Ch.  Justice,  27  (2),  32  (1),  501  (2), 

508(1),  577,  581. 
Slave  trade,  not  piracy  durino;  colonial  pe- 
riod, 392 ;  time  of  its  first  restriction 
by  English  statute,  370  (2). 
Act  of  Congress   abolishing,  in  Dis- 
trict of  Columbia.     See  Compromise 
Measures. 
Slavery,  use   of  term,  39,  47;  distinction 
of  from   political   bondage,   342  (1); 
^^^  origin  and   nature  of  by  Roman  law, 
150,  1 53  ;  chattel,  in  ancient  Europe, 
154;    how   changed   by    influence  of 
Christianity,  156  ;  antiquity  of  in  Af- 
^„^^  rica,  161;  principles  determining  its 
international    recognition,    103-111; 
^       their  application  during  the  colonial 
y^      period,  353-365. 

in   England,  a  question  of   internal 

law,  178-192  ;  a  question  of  interna- 

^ tional  law,  365-371. 

,  negro,  its  extension  in  the  fifteenth 

century,  160;  called  by  Sup.  Court 
in  Ga.  an  in.stitutiou  of  Christianity, 
165(1);  in  the  colonies  introduced 
by  universal  jurisprudence,  206 ;  sup- 
ported by  local  common  law,  212; 
power  over  it,  vested  in  the  colonial 
government,  225  ;  was  not  necessarily 
chattel  slavery,  359  ;  when  not  sup- 
ported by  common  law  of  the  empire, 
362  ;  not  now  supported  by  the  na- 
tional municipal  law  of  the  U.  S.,  570 
-575  ;  power  over,  where  placed  by 
the  puldic  law  of  the  U.  S.,  484 ; 
power  of  the  State  governments  over, 
515-527;  power  of  Congress  over,  in 
the  Territc.ries,  525-595;  in  what 
"^^^  ^ense  ascribed  to  positive  law,  576. 
Slaves,  how  protected  by  Roman  law, 
154 ;  Roman  law  respecting,  when 
taken  by  the  enemy  or  stolen,  or  fu- 
gitive, 386;  condition  of  on  return- 
ing to  domicil,  384-386. 
,  statute  law  of  colonies  respecting; 


their  character  described,  Va.,   242 ; 
Md.,  253  ;    Mass.,  265  ;  N.  11.,  266  ; 

Coini.,  271  ;   S.  C,  2:'9. 
being  in  England,  not  to  enfranchise, 

Va.,  239,  243. 
clothing  of,  N.  C,  296  ;  S.  C,  297, 

302,  306. 
dismemberment  of,    Va.,    241,    242, 

244,    245;    Md.,   259,   260;    N.  H., 

267;  Conn.,  268  (2);  Del.,  292. 
disorderly  conduct  of,    punishment, 

Va.,    L'44;    Md.,  253;    N.  H.,  266 ; 

Coim.,  270. 
death  of.      See  Killing,  Owners  com- 
pensated. 

Dromond's  slaves,  Va.,  231. 

enlistment   of,    N.   J.,  285;    S.    C, 

298. 
estate  in,  personal  or  real,  Va.,  239, 

242,  243  I  S.  C,  297. 
importation  of,  encouraged,  Va.,  230  ; 

Md.,  249,  250,  251 ;  N.  Y.,  282. 
importation,   colonial   oly'ections    to. 

Pa.,   209(1);  Va.,  245,  n.,  247;    S. 

C,  20£i,  (1),  308. 
importation,  tax  on,  Va.,  238 ;  Md., 

250,   254  ;    Mass.,  263  ;    N.  H.,  266, 

n.  ;    N.  Y.,    282  ;    N.  J.,   284,   285 ; 

Pa.,  288,  289,  290;  Del,  292;  S.  C, 

298,  300,  302,  308. 
importation    of,    prohibiteil.     Conn., 

272 ;  R.  I.,  276. 
importation    of    Indian,    prohibited, 

Mass.,  265  ;  N.  H.,  266  ;  Pa.,  288. 
insurrection  of,  Va.,  234,  23G,  244; 

N.  Y.,  281 ;  N.  C,  295  ;  S.  C,  308. 
instruction  of,  iti  reading  forbidden, 

S.  C,  307;  Geo.,  311. 

—  killing,    Va.,    232.   234,    236,    243, 

244,  246;  Md.,  253;  N.  II.,  267; 
N.  Y.,  280,  n. ;  N.  C,  295,  296  ;  S. 
C,  297,  306;  Geo.,  118  (Ji),  311,  n. 

—  manumission  of,  restrictions  on,  Va , 
237,  241,  244 ;  Md.,  254  ;  Mass., 
263  ;  R.  I.,  276;  N.  Y.,  281  ;  N.  J., 
284,  285;  Pa.,  289;  Del.,  292,  293; 
N.  C,  295. 

—  marriages  of.  Pa.,  287  ;  Mass.,  263 
(2);   and  see  Intermarriage. 

—  outlying,  Va.,   234,   236,   241,   244, 

245,  246. 

—  ownei-s  of  executed  slaves  how  com- 
pensated, N.  C,  296  ;  S.  C,  301,  302, 
306. 

—  owners  of  thievish,  N.  C,  296. 

—  passes,  required  for,  S.  C,  304,  306; 
Geo.,  311. 

—  prohibited  to  meet,  Va.,  234,  244 ; 
Md.,  2.50,  253;  Conn.,  272;  N.  Y., 
280;    N.  J.,  285;    Pa.,    288;    Del, 


614 


INDEX. 


292  ;  to  hnve  stock,  Md.,  253 ;  S.  C,  I 

301;  to   rent   liomes,  S.  C,  307;  to 

have    arms    and    ammunition,    Del.,  i 

292 ;  N.  C,  29G ;  S.  ('.,  300.  304. 
Slaves,  runaway,  X.  Y.,  279,  280;    N.  C, 

295;  S.  C,  297,  298,  300. 
speaking    defamatory  words,  Conn., 

272. 
striking   white    persons,   Va.,    234, 

244;  Md.,  2.53;    Mass.,  203  ;  Conn., 

270  ;  N.  Y.,  280 ;  N.  J.,  284 ;  S.  C, 

300,  301,  306. 
,  trading   with,   Mas.s.,  262 ;     Conn., 

270 ;  N.  v.,  280  ;  N.  J.,  283 ;  S.  C, 

297,  301).  301  ;  Ga.,  311. 
trial  of,     Va.,   237,   238,  241,  244, 

245 ;    Md.,  253  ;    N.  Y.,  281.,  N.  Y.. 

283,  284,  285  ;  Pa.,  287  ;  Del.,  291  ; 

N.  C,    296 ;    S.  C,    297,  300,   301, 

302,  305;  Ga.,  311. 
stcalino;   of,     S.  C,    297,  300,  308; 

Ga.,  311. 

working  time  limited,  S.  C,  307. 

wlio,  declared,    Va.,   233,  23.5,  239, 

243  ;  Md.,  249,  251,  n.,  252  ;  Mass., 

260  ;  N.  Y.,  278  ;  S.  C,  299,  303. 
Smith,  Compend.  of  Merc.  L.,  29  (2),  68 

(1). 

E.   Fitch,    Comm.   on    Const,    and 

-  Statutory  Construction,    13  (3),  461 

(!)■ 

,   Diet,  of  Antiquities,  7  (3),  18  (1), 

89  (1),  154  (1),  158  (2),  214  (1), 
399  (2). 

,  Hist,  of  N.  Y.,  124  (3). 

,  Wealth  of  Nations,  126  (2). 

Social  compact.     ^S'ce  Compact. 

Somerset's  case,  Mansfield's  opinion  in, 
189;  tlie  question  of  internal  law, 
191  ;  of  international  law,  331,  370, 
the  decision  justified,  373,  377. 

Soto,  de  Jiistitia  et  de  Jure,    156  (2),  176 

South  Carolina,  qualified  recognition  of 
law  of  England,  124  ;  statute  law  of 
colony,  297-309. 

Sovereign  power,  12;  how  held  in  the  col- 
onies, 120,  226,  127;  how  indivisible, 
313;  may  be  distributed,  314;  dis- 
tribution during  the  colonial  period, 
315  ;  its  location  after  the  Revolu- 
tion, 395 ;  location  of,  a  question  of 
f\vct,  396  ;  of  the  States  and  of  the 
nation,  how  manifested,  406  ;  theory 
of  its  distribution  ;  408  ;  two  essen- 
tial forms  of  its  investure,  417;  that 
reserved  to  the  States,  425. 

Sovereignty,  term  how  used,  394  (1). 

Spain,  slavery  of  moors  and  negroes  in, 
162,  344  (2),  384. 


Spelman's  Glossary,  158  (1). 

Spence's  Equity  Jurisdiction,  29(1);  In- 
quiry, &c.,  158  (2), 

Spinoza,  2  (3),  7(1),  43(1). 

Spooner,  On  tlie  Unconstitutionality  of 
Slavery,  174  (2),  576  (1). 

Staples,  Annals  of  Providence,  276  (I). 

Starkie's  Evidence,  20  (1). 

State,  the,  source  of  law,  5,  15  ;  power  of, 
accordant  with  law  of  nature,  7. 

State  sovereignty,  theories  of,  408. 

States  of  tlie  Union,  existence  of  at  the 
Revolution,  404  ;  admission  of  new, 
412;  sovereignty  of,  recognized,  43 1 ; 
meaning  of  term  in  the  Const.,  433  ; 
international  relation  of,  447 ;  resid- 
uary powers  of,  476  ;  how  restricted, 
477  ;  political  people  of  each,  513. 

State  magistrates,  their  concurrent  judi- 
cial power,  501. 

Status,  40  (2),  56  ;  a  topic  of  international 
law,  63,  101  ;  may  be  determined  by 
universal  jurisprudence,  103  ;  English 
law  of,  134  ;  of  Africans  and  Indians 
in  the  colonies,  209,  322,  390 ;  how 
now  determined  by  the  several  States, 
483. 

Statut,  term  how  used  by  French  authors, 
99(1). 

Statutes,  their  constitutionality  to  be  ex- 
amined by  judiciary,  113. 

English  recognizing  negro  slavery, 

174,  209  (1);  allowing  transporta- 
ation  of  servants  and  criminals,  219 
(1) ;  effecting  union  of  England,  Scot- 
land and  Ireland,  317  (1). 

abstract  of  the  colonial,  its  object. 


226. 

Stevens,  Hist,  of  Georgia,  206  (3),  208 
(2),  212  (2),  219  (4),  291  (1),  309 
(2),  310(1). 

Stobaeus,  Florilegium,  43  (1). 

Stokes,  on  the  Constitution  of  the  British 
Colonies,  126(2). 

Story,  Conflict  of  laws,  22  (1),  23  (1),  68 
(1),  65  (1),  71,  74,  99.  109  (1);  Com- 
mentaries on  Const.,  117  (I),  119  (1, 
2,  3,  5),  120  (4),  121  (2),  126  (1,  2), 
196  (3),  204  (1),  209  (2),  223  (1), 
227,  265  ^1),  407  (4),  481  (3),  492 
(2),  498  (1,  2),  499  (2),  500  (1).  504 
(2);  Art.  Law,  in  Appendix  to  Ency. 
Am.,  vol.  vii.,  4  (3),  5  (3),  25  (3),  32 
(1),  429  (2):  on  Equity  Jurisp.,  31 
(1);  in  Prigg's  case,  500  (1),  501 
(2),  561(1). 

Stowell,  Lord,  6  (2),  193,  208  (2),  385  (3), 
586,  587. 

Stroud,  Sketch  of  Slave  Laws,  226  (2), 
249  (I),  251  (2),  306  (2),  527  (1). 


INDEX. 


615 


Stnivc,  r.9  (1). 

Suarez,  de  Lejjibus  ct  Deo  Legislatore,  9 

(1),    14  (1),    15  (1),  29(2),    3G  (2), 

ir>8  (4). 
Subject,  of  a  right,  20. 

,  alien  and  native,  48. 

Subjection,  an  element  of  law,  48,  64. 
Subjective  and  objective  ideas  of  liberty, 

38;  of  law,  78,  109  (1). 
Suits  for    freedom,  colonial    statute,  Del., 

292  ;  S.  C,  299,  303. 
Sumner,   Senator,    IGO   (4),   1G7  (2),    376 

(4),  380(3),  470(1). 
Superior,  implied  in  law,  2. 
Supremacy  of  Judiciary  under  the  Const., 

430,  503. 
Supreme  power.     See  Sovereign  power. 
Swedish  settlements.       See  Danish. 


Tacitus,  Mores  Germanorum,  158  (1). 

Talbot,  Lord,  opinion  on  baptism  of  slave, 
185  (2). 

Taney,  Chief  Justice,  on  the  rule  of  corn- 
it}',  74  ( 1 ) ;  on  the  rights  of  the  negro 
race,  207(1 );  on  the  constitution  secur- 
ing personal  rights  and  rights  of  pro- 
perty, 463  (1);  on  the  effect  of  the 
Declaration  of  Ind.  on  status  of  ne- 
groes, 471  (2) ;  on  power  of  Congress 
over  slavery  in  the  Territories,  528- 
530,  556. 

Taxables,  in  colonial  stat.,  Md.,  251;  N. 
C.   294  (1). 

Taylor,  Eleni.  of  Civil  Law,  153  (1). 

Temple,  Sir  W.,  Essay  on  Gov.,  417  (2), 

Tennyson,  property  in  his  writings,  583  ; 
quoted,  587  (1). 

Terms.     See  Phraseology. 

Territorial  extent  of  law,  22,  23. 

Territories  of  the  U.  S.,  Sovereignty  in, 
411,  439,  589,  and  see  Congress; 
Dred  Scott. 

,  equalitj'  of  the  States  in  respect 

to,  the  political  doctrine,  554-558. 

Territory  acquired  by  Gov.  of  U.  S.,  410. 

Testimony.     Sec  Negroes,  Indians,  Slaves. 

Texas.     Sec  Compromise' Measures. 

Theft  of  one's  self,  386(1). 

Theories  of  State  sovereignty,  408. 

Thibaut,  System  des  Pandekten  Rechts, 
transl.'by  Lindley,  19  (2),  26  (2),  40 
_  (2,3),  97(2),  380(5). 

Things,  as  objects  of  action,  19. 

Tliompson,  Hist,  of  Long  Island,  277  (2), 
278  (3). 

Thoulouse,  case  of  slave  at,  337 ;  law  re- 
specting serfs,  339  (1). 


Tithahles,  in  statutes  of  Va..  230,  231, 
236,  238,  242,  245  ;  an  indication  of 
status,  359. 

Torture,  in  British  colonies,  115  (2). 

Tracy.     See  I)e  Tracy. 

Transit,  international  rule  of,  345,  354, 
365. 

Transportation,  English  statutes  regard- 
ing, 219  (1). 

of  Indian  captives,  statute  Va., 

241 ;  of  emancipated  negroes,  237. 

forbidden   in  certain  cases, 

statute    Va.,    239,    242;    Md.,  261, 
252;   S.  C,  300. 

Treaty  of  Utrecht,  1 75. 

,  intercolonial,  of  the   Dutch  and 

N.  E.  colonies,  268  (5). 

with   France  for  Louisiana.     See 


Catron. 

,  whether  part  of  the  law  of  the  U. 

S.,  590. 

Tribaud,  advocate,  in  case  of  Boucaut, 
338(2),  344(1),  376  (2). 

Tribunals,  their  province,  24  ;  in  applyino- 
private  international  law,  33,  61,  67, 
71. 

Trover,  for  slaves  in  England,  186,  188. 

Trumbull,  Hist,  of  ConnT,  121  (1),  270(1). 

Trustees  of  Georgia,  their  exclusion  of 
slavery,  310  (1). 

Tucker,  St.  George,  in  Va.  Court  of  Ap- 
peals, 526  (i);  edition  of  Bl.  Coram., 
208  (2),  223  (2),  225  (4),  245  (1), 
400  (2),  405  (2),  408  (2). 

H.   St.  G.,  Mem.  of  India  Gov., 


154(2),  216(1). 
Turner,  Hist,  of  Anglo  Saxons,  136  (3). 
Twelve  Tables,  their  origin,  144  (1);  rule 

of,  in  favor  of  liberty,  382  (1). 


U 


LHpianus,  maxim  of,  405  (1). 

Union  of  England  with  Scotland  and  Ire- 
land, 317. 

United  Colonies  of  New  England,  articles 
of  compact,  268  (5) ;  extent  of  arti- 
cles respecting  fugitives,  329,  331. 

United  States,  Courts,  Commissioners  of. 
See  Commissioners. 

,  the  Constitution  of  the,  referred  to  a 

sovereign  people,  394,  399. 

,  the  people  of  the,  who  are,  399-408. 

,  powers  belonging  to,  424-427.     See 

Constitution,  Government,  People, 
Courts,  Judicial  power. 

,  laws   of   classified,  440,   457.     See 

national  law,  local  law,  internal  law, 
international  law. 


•n 


616 


INDEX. 


Universal  extent  of  law,  described,  51,  80  ; 
criterion  for  it,  96  ;  how  shown  in  in- 
teniational  law,  105. 

Universal  attribution  of  rights,  51.  SfC 
Right*^. 

Universal  jurisprudence  defined,  17,  29  ; 
orij^in  of,  ^'> ;  is  mutable,  36 ;  enters 
into  public  law,  45,  152  (2);  may 
sustain  the  efiFects  of  foreign  laws, 
88 ;  is  a  part  of  the  law  of  every 
state,  16,  88  ;  how  the  same  as  natu- 
ral law,  !)3;  how  ascertained,  16,  93; 
distinguished  from  law  of  universal 
personal  extent,  91-95;  some  of  its 
principles  may  have  limited  personal 
extent,  103;  recognition  of,  in  Eng- 
lish law,  139,  1-12;  the  exposition 
of,  in  Roman  law,  143 ;  derived  from 
Christian  nations,  155 ;  supporting 
slavery  in  antiquity,  154;  how  modi- 
fied by  Christianity,  156;  how  sup- 
porting slavery  of  African  heathens, 
164,  170-188;  its  farther  modifica- 
tion in  respect  to  slavery,  188,  324, 
353-357,  364  ;  applied  in  the  colonies 
to  Indians  and  Africans,  202,  206 ; 
how  now  a  standard  of  property  un- 
der the  Constitution  of  the  U.  S., 
564-570. 

Utilitarian  school  of  jurists,  6  (1). 


Van  der  Linden,  Institutes  of  the  Laws  of 
Holland,  277(2). 

Van  Leeuwen,  Comm.  on  Roman-Dutch 
Law,  277  (2). 

Vattel,  Law  of  Nations,  3  (1),  46  (1),  313 
(2),  345. 

Vaughan,  Ch.  J.,  27  (2). 

Verdelin"s  slaves.     See  Boucaut. 

Vico,  Giambatista,  144  (1). 

Victoria,  Francis,  204  (2). 

Vienna,  Consrress  of  AUied  Powers  at, 
418(1)." 

Villenage  iu  England,  136;  could  not  ex- 
ist in  the  colonies  by  common  law,  137. 

Viner's  Abridgment,  27  (2). 

Vinnius,  Commentaries,  30  (1),  147  (1), 
150(1),  158  (4),  159(1),  167(3). 

Virgil.  iEneid,  147  (3) ;  Moretum,  161  (1). 

Virginia.  See  Charters.  Statute  law  of  the 
colony.  228-247;  introduction  of  ne- 
gro slavery,  205. 

House  of    Burgesses,  Petition  of 

1772,  225  (4),  245(1);  Declarjition  of 
Rights,  246;  Committee  Report  1799, 
on  the  Alien  and  Sedition  Laws,  123  (2). 

Voet,  de  Statulis,  72  (1). 


Voltaire,  Diet.  Philos.,  157(1),  1.59(1). 
Vohuitarv  as.sociation  in  foundation  of  N. 

E.  Governments,  120,  265  (1),  267. 
Von  Martens.     See  Martens. 


W 


Wade,  History  of  the  Middle  and  Working 
Cbsses,  135  (1),  1.36  (.3,  4),  137  (4), 
159  ( 1 ),  471  (1) ;  British  Chronology, 
188  (2). 

Waechter,  in  Archiv  f  iir  die  Civ.  Praxis, 
22(1),  .59  (1),  78(1),  89(1),  97(2), 
99(4),  100(1),  109(1),  113. 

Waldeck'.s  Institutes,  152  (1). 

Walker's  Theory  of  Common  Law,  141. 

Wallon,  Hist,  de  "Esclavage  dans  I'Anti- 
quite,  1.54(3),  156(4).  157(1). 

Walsh's  Appeal,  &c.,  205  (3),  208  (2),  219 
(3,  4).  225(4),  370(2). 

Walter,  Lehrbuch  d.  Kirchen  Rechts,  157 

War,  a  source  of  slavery,   l.'iO,  151. 

Ward's  Hist,  of  Law  of  Nations,  157  (1), 
158  (4),  159  (2). 

Warwick,  Earl  of,  charter  to,  273  (3). 

Washburn,  Jud.  Hist,  of  Ma.ss.,  231  (1); 
Paper  on  .Slavery  in  Mass.,  264,  (1). 

Wayne,  Mr.  Justice,  in  Dred  Scott's  case, 
on  the  Missouri  Compromise,  531. 

Webster,  Daniel,  Speech  iu  Senate  U.  S., 
7  March,  1850,  154  (2),  164  (2);  in 
the  Rhode  Island  Controversy,  413 
(2) ;  on  extension  of  the  constitution 
to  the  Territories,  423  ( 1 ). 

Wentwortli,  commission  to,  265  (1),266(1). 

Wesenbecius,  Comm.,  19  (3). 

Wheaton,  El.  of  Internat.  Law,  9  (1),  10 
(1),  34  (1),  57  (1),  93  (3),  145  (1), 
147  (3),  152  (2),  176  (1);  Hist,  of 
Law  of  Nations,  145  (1),  152  (2)," 
175(1),  176  (1),  204(2);  in  Revue 
Franc,  et  Etrang.,  161  (2). 

Whewell,  Elem.  of  Mor.  and  Pol.,  5  (1),  9 
(1),  15  (4),  24  (1),  36  (2),  47  (2),  130 

(2). 

White  persons,  power  of  State  Govern- 
ments to  enslave,  527. 

— —  their  intercourse  with  blacks.    See 


Illicit  Intercourse,  Intermarrisige. 
Wickliff,  doctrine  attributed  to,  179  (2). 
Wicquefort,  TAmbassadeur,  336. 
Wildman,  International  Law,  9  (1). 
Wilkins,  Leges  Sax.,  137  (2). 
Williams,   Elisha,  in  N.  Y.   Cons.  Conv., 

413(2). 
Williamson,  Hist,  of  X.  C,  294  (1). 
Wilmot,  Ch.  J.  on  customary  law,  27  (2). 
Wiuthrop,  Hist,  of  N.  E.,  261  (1). 


INDEX. 


617 


Word  of  God,  in  Mass.  statutes,  259,  260 ; 

Conn.,  2G8  (3). 
Wood's  Civil    Law,  1  (2) ;    lustitutes,   20  I  Yorke,  Lord  Chan.  Ilardwicke,  opinion  re- 


(1),  3S1  (2). 
Wooddeson,  Lectures,  27  (2). 
Woolsej^  T.  D.,  Presd.,  on  Libertlni,  2M 

(1). 
Wright's  Tenures,  13G  (4). 


X 

Xenophon,  Cjropcedia,  151  (1). 


specting  slaves  being  in  England,  and 
baptized,  185. 
Young,  Chronicles  of  Massachusetts,   122 
(2),  254  (2). 


Zachariii,  58  (1). 
Zouch,  9  (1). 


END  OF  THE  FIRST  VOLUME. 


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